Property:Contents
Jump to navigation
Jump to search
F
Differences in state and federal law contribute to varying levels of freedom of association across the United States. While Supreme Court cases such as Bates v. Little Rock, Shelton v. Tucker, Roberts vs. United States Jaycees, Boy Scouts of America vs. Dale, and Christian Legal Society vs. Martinez upheld the right to freedom of association, the right continues to be violated across states. Furthermore, despite its support from the Supreme Court, the system of federalism often leads to the restriction of freedom of association by local courts and authorities.
Particularly in South Florida, Lance Compa investigates how nursing home workers’ rights to free association have been violated. Furthermore, Compa explains how federalism exacerbates these violations. Noting the Palm Garden nursing home case, Copa discusses how nursing home workers were threatened with pay and benefit cuts if they decided to join unions. Additionally, Compa notes Palm Garden’s personnel manual, which states, “This is a non-union health center...if you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking.” After workers were in fact fired for joining unions, Compa notes, the NLRB asserted that Palm Garden must reinstate employees, as they had violated the workers’ right to free association. Still rejecting rehiring the employees, Compa explains that Palm Garden appealed to federal court, where the case still remains pending indefinitely. Furthermore, while the Supreme Court may uphold freedom of association, this does not mean the right can be strictly enforced throughout the United States, as appealing to federal courts demonstrates a significant challenge.
Additionally, Compa notes how freedom of association has been restricted for food processing workers. Specifically, Compa discusses the abuses faced by Smithfield workers in North Carolina, a state dominated by the food processing industry. Firing union activists and actively intimidating and discriminating against organizing workers, the Smithfield Plant violated its workers' freedom of association in numerous ways. Compa stresses that these abuses were ultimately the result of federalism, a system that contributes to the restriction of freedom of association. Compa states, “Instead of fulfilling the affirmative responsibility of government authorities to protect workers’ rights, state power was used to interfere with workers’ freedom of association in violation of international human rights norms.” Noting how local police were permitted to intimidate workers at the Smithfield Plant, Copa affirms how local authorities restrict freedom of association, countering federal law. This demonstrates how the division of state and federal power can weaken the strength of freedom of association, as local governments can discreetly work to limit the right.
The right to associate - specifically, the right for associations to exclude people from membership for whatever reason they want - may conflict with the right not to face discrimination based on immutable characteristics such as race and gender. The US Supreme Court has decided cases where an association’s decision to exclude members conflicts with non-discrimination law. In Roberts v. US Jaycees ( [[Probable year:: 1984]]) , the court rejected the free-association claim of a male-only business organization because its association was neither “expressive” nor “intimate.” In Boy Scouts v. Dale ([[Probable year:: 2000]]) , however, the court held that the Boy Scouts of America could exclude gay members because not being able to do so would violate the organization’s right to expressive association.
Free expression is critical to the practice of free association. The US Supreme Court explicitly protects “expressive” association because many associations exist to express a particular viewpoint. If a government restricts the advocacy of certain ideas, it will almost certainly restrict the activity of groups whose purpose is to express those ideas. Additionally, freedom of association depends on the free exercise of religion. As Locke wrote in A Letter Concerning Toleration, a church is a “a society of members voluntarily uniting” (Locke [[Probable year:: 1689]], 9). Religious observance often requires worship in large groups, so restricting these religious practices entails the abridgement of free association.
Roberts v. US Jaycees: https://supreme.justia.com/cases/federal/us/468/609 Boy Scouts of America v. Dale: https://www.oyez.org/cases/[[Probable year:: 1999]]/ 99-699
A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf +
Numerous scholars offer interpretations of the hierarchy of rights, placing freedom of association at differing levels of importance. Noted by Tom Farer in “The Hierarchy of Human Rights”, human rights are non-negotiable, and thus are prioritized within the hierarchy. As to why certain rights remain at the top of the hierarchy, Farer answers “because all other rights are dependent on them.” Furthermore, Farer claims that a consensus among United States human rights organizations is that the rights to life, physical security, and due process are essential human rights. Excluding freedom of association from his selection of non-negotiable human rights, Farer undermines its importance within the hierarchy of rights. Thus, Farer emphasizes that the rights to life, physical security, and due process hold precedence over the right to free association.
Fernando Surez Muller argues that there is a select group of fundamental rights that are essential to the exercise of all other rights. With this, Muller emphasizes that certain rights must be prioritized in order for others to be functionally implemented. When analyzing the Universal Declaration of Human Rights, Muller interprets freedom of association to be a right of particular importance. Muller argues that the rights to communication and expression are impossible to exercise without the right of free association, claiming, “Related to this transcendental right to communication (cell 6) are also all mobility rights (mentioned in articles 13 to 15) because communication is not only a matter of expression but it is also a matter of transporting and receiving the message and this requires freedom of association.” Thus, from Muller’s perspective, freedom of association maintains a high position within the hierarchy of human rights.
Explained by Kimberley Brownlee and David Jenkins of the Stanford Encyclopedia of Philosophy, the right to associate often only pertains to certain associations. Because of this, different rights to different associations have varying ranks within the hierarchy of rights. Brownlee and Jenkins claim “However, since not all associations operate according to either implicit or explicit declarations of consent, exactly what counts as consent is a difficult thing to assess: How do we know when association is free? This problem is exacerbated by the hierarchical form that many associations take.” For this reason, Brownlee and Jenkins note that explicit associations, group identifications that are easy to identify and thus protect, are often prioritized within the hierarchy of rights.
The Universal Declaration of Human Rights places freedom of association at a high position of value. The document asserts: “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” While the document does not enumerate human rights in hierarchical order, the platform of the United Nations and the inclusion of the freedom of association within the document suffices the right’s universally accepted importance and position of high status.
Additionally, the inclusion of freedom of association within the European Convention on Human Rights emphasizes the value of the right. Asserting the importance of freedom of association, Article 11 claims, “Everyone has the right to freedom of peaceful assembly and of association with others, including the right to form and join trade unions for the protection of his interests.” Stressing freedom of association to be an essential human right, the Convention echoes the Universal Declaration of Human Rights, upholding the value of freedom of association.
The Canadian Charter of Rights and Freedoms similarly elevates freedom of association to a high status. Within its fundamental freedoms section, the charter emphasizes “Everyone has the following fundamental freedoms: a. Freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.” Explicitly stating that the freedom of association is one of the four fundamental freedoms, the Charter clearly asserts that freedom of association is essential to the liberty of individuals. Given the select group of fundamental freedoms, the placement of freedom of association within the list demonstrates its uplifted position within the greater hierarchy of human rights.
In the Declaration on Fundamental Principles and Rights at Work, the International Labour Organization additionally upholds the pertinence of freedom of association. Within the declaration, the ILO asserts four categories to be promoted by member states, including freedom of association. Similar to The Canadian Charter of Rights and Freedoms, by only including a select group of rights, the Declaration affirms the high status of these freedoms. Thus, the inclusion of freedom of association within the four categories asserts its importance
An array of historical events have contributed to the identification of the right to freedom of association as a fundamental right ranging from the red scare during the Cold war, guilt by association laws, and the dismantling of legislation permitting the existence of racial segregation. A specific event that contributed to the identification of freedom of association as a fundamental right was the emergence of the Civil Rights Act of 1964; this enactment historically marked the end of segregation and legally prohibited the discrimination of people on the basis of race, ethnicity, gender or religious affiliation. After this act was enacted into law, people living in the American South were free to associate with anybody regardless of their racial or ethnic identity. Although the Civil Rights act was an example of legal identification of the freedom of association as a fundamental right, this was not the first time in history that association was debated over whether or not it constituted a right. The introduction of the acknowledgment of the right to freedom of association begins with the existence of guilt by association laws, as well as labor union provisions. These legal prohibitions restricting an individual from freely exercising their right to association with people of their choosing point to the significance of the legal precedent permitting the right to freedom of association to remain protected under law.
An example of an event that led to the classification of the right to freedom of association as impenetrable liberty under the law is drawn from a ruling that was decided in the early 20th century but drew upon a case from the 1890s to point out the precedent that the right to freedom of association had under Missouri state law. “The distinction [of the right to freely associate] was of some significance in the criminal syndicalism cases of the early twentieth century precisely because the Missouri Supreme Court had three decades earlier (in 1896) invalidated a St. Louis vagrancy ordinance that sought to forbid residents from “knowingly...associat-[ing] with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes or lewd women or gamblers, or any other person, for the purpose or with the intent to agree, conspire, combine or confederate, first, to commit any offense, or, second, to cheat or defraud any person of any money or property.” It was here, in a context far removed from public meetings and speeches, that lawyers and judges first considered a right to freedom of association.” (Whittington, 2008, pg. 81). This specific analysis of the documented Missouri Supreme Court invalidation placed upon the St. Louis' vagrancy ordinance in 1896 underlined an imperative element to the right to freely associate; a state cannot legally abridge someone from willingly associating with people that are assumed to have a negative reputation or past history within the legal system. This legal precedent solidified the right to freedom of association as a federally protected right; prohibition of the freedom to exercise an individual’s right to freedom of association would result in federal action against a state that chose to interfere.
Although the freedom to associate with people freely can include restrictions placed on an individual, there are indeed group prohibitions under the right to freedom of association. “Notions of political discrimination in the public workplace derived initially from the Cold War era in a series of cases dealing with loyalty oaths. Loyalty oath cases derived from the fear of the spread of Communism after the Russian Revolution in 1917. During this time and thereafter, many laws were passed in the United States which sought to limit the ability of Communists or Communist sympathizers from gaining government employment and undermining the government. In particular, numerous federal and state laws were passed prohibiting the holding of public employment by those who refused to swear that they had not had any connection with the Communist Party.” (Secunda, 2008, pg. 351). When the US government chose to reinforce fierce associative laws prohibiting the free exercise of choice to associate in groups with people that held different political ideological beliefs, the federal right to freedom of association was subjunctively infringed upon. During a volatile time for the US, while fighting against communist encroachment, the right to freedom of association was more or less viewed as something that could be used as a tool or weapon. By prohibiting the association of people in the US and Communists or supporters of the communist party, the US government was sending a clear message to those who aligned themselves with communism, that they would not be welcome to share their beliefs with other people through threats of blackballing or guilt by association.
An example of ideological group association that was upheld as a right to the freedom of association occurred in 1984, in of Roberts v. US Jaycees case. “Moreover, group expression is deemed essential in a democratic society to preserve political and cultural diversity and to protect unpopular views from majoritarian control.” (pg. Jameson, 1985, 1065). This idea of group expression extends beyond intimate associations, in the Supreme Court case Roberts v. United States Jaycees, the national organization of US Jaycees limited their full membership status to men aged eighteen to thirty-five; and subsequently prohibited women and older men in the organization from being eligible for full-time memberships. Justice William J. Brennan ultimately ruled that the inclusion of women and older men in ‘associate’ memberships constituted an acknowledgment of membership status. Thus the Jaycees had no legal right to exclude them from associating with the organization as full-time members. This ultimately affirmed the state of New Jersey’s court decision to institute an antidiscrimination policy within the bylaws of the US Jaycees membership requirements. “In Roberts v. United States Jaycees, the Supreme Court reversed, holding that the state’s interest in eliminating gender-based discrimination justified the impact that requiring the Jaycees to admit women may have on the male members’ freedom of association.” (Jameson, 1985, pg. 1058). Although the U.S. Jaycees were a private organization, the prior inclusion of women and older men as part-time members led the court to rule in favor of the NJ state decision, the Jaycees could not legally restrict women from associating themselves as full-time members within the Jaycees organization.
A situation that brought to light forceful infringements on the right to freedom of association occurred in the 2000s, following the exposure that the Boy Scouts of America excluded a scoutmaster from being a part of the organization after learning of his sexual orientation. “Boy Scouts of America v. Dale, 2000, US Supreme Court struck down this application of New Jersey’s anti-discrimination law on the ground that forcing the Scouts to allow homosexuals to be members and scoutmasters would alter the Scouts’ “message” and thus violate their First Amendment right of freedom of expressive association.” (Alexander, 2008, pg. 6). Due to the nature of the scout’s organizational message, specifically mentioning their goal to “instill clean and straight moral values”, the Supreme court ruled in favor of the organization’s right to freely associate with those that aligned with their moral values. This particular ruling signifies the dichotomy within the right to freedom of association; a private organization can restrict members from joining if their personal associations go against their organization’s message and central core tenets. The difference between this case and that of the US Jaycees case was rooted in how the organization viewed members. Boy Scouts of America subjectively denied homosexuals entry from their scout memberships and the entire program, whereas Jaycees had already included women and older men in their associative memberships within the organization. Thus, the supreme court aligned its rulings with factual precedent; if a state interfered with an organization's right to associate with those who they chose, then the federal government would step in and uphold the right to freedom of association as long as the provisions of membership were not violated. Therefore, it did not violate the Jaycees' right to freedom of association by allowing women and older men to move from part-time members to full-time. However, with BSOA, their organization’s values and the core central message would have been infringed upon if the court demanded that the Boy Scouts accept homosexuals as scout leaders and members.
A circumstance in history where the right to the freedom of political association was upheld by the Supreme Court followed the exercise of discriminatory voting blocs by the Democratic party in Texas. “In Terry [Terry v. Adams, 1953], the Court prohibited a county in Texas from giving effect to what amounted to (successful) racial bloc voting. Democrats far outnumbered Republicans in the county, and thus the Democratic primary winners always prevailed in the general elections for county offices. Further, white Democrats appreciably outnumbered black Democrats within the county’s Democratic Party. Although the Court in one of the earlier White Primary cases had forced the Democratic Party in Texas not to discriminate against black voters in its primaries —which, after all, were run by the state itself out of tax revenues—and the Democratic primary in this county was indeed open to black voters, the white Democrats organized themselves into the Jaybird Club and held their own, privately supported “pre-primary primary.” (Alexander, 2008, pg. 5). The right to freedom of association does not necessarily extend to the right to freely exclude an entire group of people from a public political organization through the use of racial bloc voting. The Democratic party was prohibiting the right to freedom of association by not allowing Black voters to have a choice of whether or not they wanted to associate themselves with the candidate that the Jaybirds had elected.
Historical events that contributed to a widespread belief in the importance of the right to freedom of association can be shown from the decision in the Supreme Court case Loving v. Virginia; decided in 1967, this case determined that Southern states were legally required to allow interracial marriages to be permitted under law. The Loving decision brought forth a significant argument in favor of the right to freedom of association, a state could not legally abridge the right to freely associate with people in intimate capacities.
The right to freedom of group expression underlines the exceptions within precedent regarding the exercise of group political identities or participation with associative organizations. “Specifically, these cases dealt with the so-called "spoils system," or political patronage, which rewards public employment based on loyalty to a given political party. In Elrod v. Burns, for example, the plurality decision written by Justice [William] Brennan found that Illinois public employees, who were non-confidential, non-policymaking employees, could not be fired merely because of their partisan political affiliation." (Secunda, 2008, 352). The Burns decision highlights an interesting exception to the right to freedom of association, although the spoils system was legal under the Constitution, the use of political patronage against state employees for their political identity association was a direct infringement upon an individual’s exercise of the right to freely associate. In this particular IL public school, employees found themselves penalized for choosing to associate themselves with a particular political party or organization based on the principle that the state of IL deemed it appropriate to fire employees based on their political associations.
Another example of protecting the right to freely associate intimately with another person is underlined by the decision in Lawrence v. Texas. In 2003, the Supreme court struck down a TX sodomy law as a violation of the Fourteenth Amendment. In an attempt to dictate the specific terms under the right to freedom of association, TX had formed a sodomy law prohibiting the free exercise of intimate forms of association. “‘Bowers had held that there was no constitutional right to engage in homosexual sodomy.' In overturning Bowers, Lawrence's central holding was that the Texas sodomy statute at issue furthered no legitimate state interest which could justify the intrusion into the personal and private life of the individual. The most important constitutional innovation wrought by this holding is the apparent attachment of some form of heightened scrutiny to the right to be free from decisional interference in matters of an intimate nature. Indeed, implicit in this holding is the need to balance individual privacy interests against legitimate and substantial state interests.” (Secunda, 2008, pg. 357). The significance of an intrusion on private associations in regards to exercising the freedom of association as a fundamental right divides the debate in half, a state government cannot abridge the freedom of association when deciding who someone can intimately be associated with under federal law. A legitimate state interest would need to be produced in order for an intimate association to be prohibited under TX state legislation.
References:
Alexander, Larry. "What is Freedom of Association, and what is its denial?." Social Philosophy and Policy 25, no. 2 (2008): 1-21.
Epstein, Richard A. "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Stanford Law Review 66 (2014): 1241.
Inazu, John D. "The Unsettling “Well-Settled” Law of Freedom of Association”, 2010.
Jameson, Ann H. "Roberts v. United States Jaycees: Discriminatory Membership Policy of a National Organization Held Not Protected by First Amendment Freedom of Association." Catholic University Law Review 34, no. 4 (1985): 1055-1086.
Secunda, Paul M. "Reflections on the Technicolor Right to Association in American Labor and Employment Law." Kentucky Law Journal 96, no. 3 (2008).
Whittington, Keith E. 2008. “INDUSTRIAL SABOTEURS, REPUTED THIEVES, COMMUNISTS, AND THE FREEDOM OF ASSOCIATION.” Social Philosophy and Policy 25 (2). Cambridge University Press: 76–91.
First mentions of freedom of association as a right emerged during the Enlightenment period of the 17th and 18th centuries from philosophers like John Locke and Montesquieu. Locke forms his argument on a larger scale in terms of political society as a whole: “Nothing can make any man so but his actually entering into [society] by positive engagement and express promise and compact. This is that which, I think, concerning the beginning of political societies, and that consent which makes any one a member of any commonwealth” (Locke 1690, 158). Montesquieu however specifies his argument in terms of economic associations: “… all associations of merchants, in order to carry on a particular commerce, are seldom proper in absolute governments” (Montesquieu 1748, 352). Conversely, if associations are not “proper” in absolute governments, one can conclude that Montesquieu advocated for freedom of association as a necessary component of a democratic society to protect individual interests. While Enlightenment philosophers were among the first to raise the issue of association rights, it took several hundred years for it to be officially and legally codified. Major historical movements that have promoted freedom of association are of twofold importance: firstly, association rights are often exercised to highlight societal or political injustices, but the right itself also lends legitimacy to the people who want to see progress in their societies and governments.
In terms of formal acceptances of freedom of association, the first country-specific code emerged in France in 1789 and the United States in 1791. In the Declaration of the Rights of Man and the Citizen, Article 11 establishes that “the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law” (“Declaration of the Rights of Man”). Shortly after the publication of this document, the First Amendment to the Constitution of the United States was ratified, ensuring that “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” (U.S. Constitution. Amendment I). While freedom of association is not explicitly identified here, the freedoms that are listed are specific elements of what constitutes freedom of association as a whole.
CODIFIED LAWS THAT PROTECT FREEDOM OF ASSOCIATION
The promotion of freedom of association did not emerge on an international scale until after World War II. First in 1948 with the adoption of the United Nations’ Universal Declaration of Human Rights (UDHR), Article 20 provides that “everyone has the right to freedom of peaceful assembly and association. No one may be compelled to belong to an association." This was the first international agreement to refer to human rights and liberties that everyone should enjoy, regardless of nationality or citizenship. And while this is not a universally legally binding document, it serves as a baseline for legal frameworks around the world and establishes freedom of association as a fundamental right of democratic societies. Building upon the UDHR later in 1966, the UN established the International Covenant on Civil and Political Rights (ICCPR) to ensure the protection of fundamental civil and political rights in each of its participant countries. Article 22 states that:
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others…
While the UDHR is an internationally focused agreement, it is not legally binding for the partner countries and therefore has no real jurisdiction or right to action. Conversely, the ICCPR as a legal document guarantees the rights it establishes in each country that ratifies the Covenant.
AMERICAN LABOR AND TRADE UNION MOVEMENT
The American labor and trade union movement of the early 20th century was a major historical force that contributed to a more widespread belief in freedom of association. In light of the industrialization of the 18th and 19th centuries, the movement fought for the rights of workers to form trade unions and bargain collectively. As we saw in the UDHR, one can think of union membership as an exercise of freedom of association. An example from the decade before the promulgation of the UDHR that might make this clear is the passage of the National Labor Relations Act into law in 1935. Its main objective was to guarantee freedom of association for employees via the formation of union organizations. Section 7. C provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” (United States Code: National Labor Relations). Because of the work of trade organizations like the American Federation of Labor and Congress of Industrial Organizations, freedom of association was now a legally protected right for American employees in their places of work.
WOMEN’S SUFFRAGE
The women’s suffrage movement of the 19th and 20th centuries was greatly dependent on freedom of association as a means of action, and it also helped to promote a more widespread belief in this freedom as a fundamental right. Organizations like the National American Woman Suffrage Association (NAWSA) in the US and the Women's Social and Political Union (WSPU) in the UK were instrumental in organizing efforts of like-minded people who wanted to see gender equality for political rights. One of the most notable events of the movement was the Seneca Falls Convention that convened in 1848. At this convention, Elizabeth Cady Stanton produced the Declaration of Sentiments, which explained both what activists wanted to see produced from their actions (i.e., gender equality socially, politically, religiously, and economically), but also how they planned to use freedom of association to publicize their message and complaints. The Declaration proclaims that “we shall employ agents, circulate tracts, petition the State and National legislatures, and endeavor to enlist the pulpit and the press on our behalf. We hope this Convention will be followed by a series of Conventions embracing every part of the country” (Stanton, 1848). By utilizing freedom of association to organize the efforts of their activists, they could achieve greater clarity of message and work more efficiently to bring their goals to fruition.
AMERICAN CIVIL RIGHTS MOVEMENT
Similar to the women’s suffrage movement, the Civil Rights Movement in America was highly dependent on the right to join organizations of one’s choosing and therefore was crucial to affirming the importance of freedom of association. But unlike the suffrage movement, there was an added barrier to the free utilization of this right— institutionalized racial segregation and discrimination. Organizations like the National Association for the Advancement of Colored People (NAACP) and the Student Nonviolent Coordinating Committee (SNCC) emerged as a way for like-minded individuals to coordinate efforts and provide support for other activists, but they were often met with resistance on grounds of racial discrimination. In the landmark case NAACP v. Alabama, John Patterson sued the state in an attempt to ban the organization from operating in Alabama based on the argument that “the NAACP was a foreign corporation not qualified to do business in Alabama” (Rubinowitz 2017, 1237). Patterson then “obtained an order compelling the NAACP to provide its membership list as part of the state’s assessment of the organization.” But “the organization refused to comply because of the harm that would cause both the individual members and the NAACP itself" (Rubinowitz 2017, 1237). The case reached the Supreme Court in 1958, and a unanimous Court decided in favor of the petitioners, explaining that “in the circumstances of this case, compelled disclosure of petitioner's membership lists is likely to constitute an effective restraint on its members' freedom of association…” (NAACP v. Alabama 357, 1958).
ANTI-APARTHEID MOVEMENT
The anti-apartheid movement in South Africa spanned several decades of the 20th century and was aimed at dismantling the systemic racism that the government of South Africa was built on. It utilized and promoted freedom of association as a means to organize resistance efforts and promote fundamental equality which contributed to a widespread belief in this right. The African National Congress (ANC) was the primary group leading the liberation movement for many years before being forced to go underground in the 1960s. Despite this, and after decades of repression, censorship, and violence at the hands of the apartheid government, the resistance efforts reached new heights in the 1980s. As more community organizations began to appear, it became clear that there was a need for greater structure to achieve their goals of liberation. This led to the creation of organizations like the United Democratic Front (UDF) and Congress of South African Trade Unions (COSATU). The importance of these organizations cannot be overstated-- it was the persistent efforts of anti-apartheid associations that won out in the end and put the ANC in power from 1994 onwards (ANC History: The Struggle for People’s Power, 2023).
SOLIDARITY
The Solidarity movement was a trade union movement in Poland in the late 20th century that leveraged freedom of association to protest the communist regime. Communist rule in Poland had long been unpopular, and Solidarity was not the first movement to arise in opposition to them, but it was the first to successfully utilize the right of association to produce change which proved its importance as a fundamental right (Bartkowski 2009, 2). Following years of economic decline, Poland saw massive labor strikes in the summer of 1980. The trade union Solidarity was born out of the Gdansk Shipyard under the leadership of Lech Walesa and was legalized by the Polish government shortly thereafter as they determined that “it is considered expedient to establish new self-governing trade unions that will genuinely represent the working class” (Gdansk Agreement 1980, 11). They became the first legal trade union in the Eastern Bloc, and they eventually grew into a popular political movement. But as its popularity and size continued to develop, the communist regime imposed martial law and forced Solidarity underground. However, Solidarity survived this repression and later played a key role in the appointment of the country’s first non-communist prime minister nearly a decade later (Bartkowski, 2009).
REFERENCES
“ANC History.” African National Congress. Accessed June 16, 2023. https://www.anc1912.org.za/history/.
Baron de Montesquieu, Charles de Secondat. The Spirit of the Laws. Translated by Thomas Nugent. Batoche Books, 2001.
Bartkowski, Maciej. “Poland’s Solidarity Movement (1980-1989).” International Center on Nonviolent Conflict, December 2009. https://www.nonviolent-conflict.org/polands-solidarity-movement-1980-1989/.
“Declaration of the Rights of Man.” Avalon Project. Accessed June 16, 2023. https://avalon.law.yale.edu/18th_century/rightsof.asp.
Khronika Press. “The Gdansk Agreement: Protocol of Agreement between the Government Commission and the Interfactory Strike Committee Concluded on August 31, 1980 at Gdansk Shipyards.” World Affairs 145, no. 1 (1982): 11–19. http://www.jstor.org/stable/20671927.
Locke, John. “Of the Beginning of Political Societies.” Essay. In Two Treatises of Government 10, 10:146–58. London: Thomas Tegg et. al, 1823.
NAACP v. Alabama ex rel. Patterson (U.S. Supreme Court June 30, 1958).
Rubinowitz, Leonard S. 2017. “The Courage of Civil Rights Lawyers: Fred Gray and His Colleagues.” Case Western Reserve Law Review 67 (4): 1227–75. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=123785450&site=ehost-live&scope=site.
Stanton, Elizabeth Cady. “The Declaration of Sentiments.” The Seneca Falls Declaration 1848 . Accessed June 16, 2023. http://www.let.rug.nl/usa/documents/1826-1850/the-seneca-falls-declaration-1848.php.
UN General Assembly. International Covenant on Civil and Political Rights (ICCPR). New York: United Nations General Assembly, 16 December 1966.
United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations General Assembly, 1948.
U.S. Constitution. Amendment I
United States Code: National Labor Relations, 29 U.S.C. §§ 151-166 Suppl. 2 . 1935.
The right to freedom of association is recognized by the United Nations as universal and intrinsic to every human being, encompassing an individual’s right to interact and organize with others to collectively “express, promote, pursue and defend common interests”. The Universal Declaration of Human Rights, a key text in the history of international human rights law, states in its Article 20 that “everyone has the right to freedom of peaceful assembly and association” and “no one may be compelled to belong” to one, with an individual’s right to “form and to join trade unions for the protection of his interests” being expanded upon in Article 23 (UN General Assembly 1948, 5-6). Freedom of association is also closely related to freedom of assembly, with the latter often being seen as falling under the umbrella of “association”. However, this freedom is not guaranteed to the same capacity in every state, with countries having their own interpretations and practices of the right within their legal code, in part due to their unique cultural and political context. This results in different protocols and limitations related to the formation of associations, with some states interpreting the right in a more restrictive manner and outlawing certain groups, placing obstacles in their creation, or impeding them through particular practices, while other states are more lenient as long as the organizations are not engaging in violent practices.
While the Constitution of the United States recognizes and protects the rights to freedom of assembly, freedom of speech, and freedom to petition the government, it does not explicitly mention the right to freedom of association. However, as the report by the UN’s Special Rapporteur on the rights to freedom of peaceful assembly and of association in the U.S. affirms, “The right to freedom of association is implicitly guaranteed by the first and fourteenth amendments of the Constitution, read together, which protect the rights of free speech and assembly and due process, as affirmed by the Supreme Court in a number of cases” (“Report..” 2017, 10). These cases include NAACP v. Alabama and Bates v. Little Rock (1960) in which the Supreme Court recognized the right of individuals to “associate together free from undue state interference” and that “freedom of association finds protection within the First Amendment’s free speech and assembly clauses” respectively (“Case Studies” 2023, 1). This gives citizens the ability to “associate, organize and act collectively”, forming special interests groups and allowing workers to unionize, though the latter is “regulated by several pieces of legislation at the federal, state and local levels” and laws that are “supplemented by court and tribunal decisions that establish related standards and principles” (“Report…” 2017, 10). The freedom of association is not absolute in the United States, as “forms of association that are neither ‘intimate’ nor ‘expressive’ within the meaning of First Amendment Case law may not receive constitutional protection” (“Overview of Freedom of Association” 2023). Nevertheless, even individuals who form associations for the purpose of engaging in assembly can be subject to government oversite, as the UN’s Special Rapporteur wrote that the “Supreme Court has held that the right to assemble is not absolute, allowing the authorities to impose restrictions on the time, place and manner of assembly and to require permits”, though they are “prohibited from restricting assemblies based on their content”. He further noted that the “interpretation by the Supreme Court of this right falls short of international standards, owing to the approach to restrictions on the time, place and manner of assembly” (7). Under the legal code, the Supreme Court has also held that “compelled association” can violate the Constitution: "in some circumstances, laws requiring organizations to include persons with whom they disagree on political, religious, or ideological matters can violate members’ freedom of association, particularly if those laws interfere with an organization’s message” (“Overview of Freedom of Association” 2023).
Freedom of association in Niger is explicitly granted in article 9 of the country’s constitution, giving citizens the right to form unions, non-governmental organizations, and political parties with certain restrictions. During a visit to Niger to report on the right to freedom of peaceful assembly and of association, Special Rapporteur Clément Nyaletsossi Voule noted: “Ordinance No. 84-06 of March 1, 1984, on the regime of associations reaffirms discrimination in the Nigerien Constitution against territorial associations and indigenous peoples, where associations of a regional or ethnic nature, specifically associations of ethnic groups, tribes and other territorial divisions are prohibited (Voule 2022, 13). He further wrote that this “censorship of certain types of associations is not in line with international standards relating to freedom of association and the obligation of democratic states to guarantee pluralistic spaces and to ‘leave no one behind’ in the implementation of sustainable development goals.” (13). The legal code in Niger does not allow for the creation of these groups, interpreting the right to freedom of association differently than in countries where it is not prohibited to form political groups along those lines. Though the Constitution of Niger does provide for the right to association, Special Rapporteur Voule emphasized that in practice it can be quite difficult to exercise in the country: “The Special Rapporteur became aware, during interviews with representatives of civil society, of the time needed to register associations and receive recognition orders, which can range from two to ten years. While these deadlines are provided for by Ordinance No. 84-06, the procedure established by Decree No. 2022-182 may accentuate the slowness of the process, making it practically impossible to create associations, in particular those whose purpose is to respond to the current political and social situation and to act accordingly.” (Voule 2022, 16) Niger’s ability to exercise the right is considerably hindered by its slowness in carrying out the registration process, creating a discrepancy between its legal code and the reality for its citizens.
Iran, a theocratic state, guarantees freedom of association in its constitution, though with certain restrictions. In its 2022 Country Report on Human Rights in Iran, the U.S. Department of State stated that the Iranian Constitution protects the “establishment of political parties, professional and political associations, and Islamic and recognized religious minority organizations, as long as such groups do not violate the principles of freedom, sovereignty, national unity, or Islamic criteria, or question Islam as the basis of the country’s system of government” (“Iran” 2023, 40). Authorities have the power to regulate them and decide whether an association violates the constitution, with the Department of State’s report stating that the government limited freedom of association through “the imposition of arbitrary requirements on organizations” and broadening “arbitrarily the areas of civil society work it deemed unacceptable, to include conservation and environmental efforts” (40). While providing for the right under its legal code, the government interprets it in a more restrictive manner and heavily regulates it, prohibiting the formation of several types of groups, such as trade unions and labor organizations The non-profit organization Freedom House found that labor organizations and nongovernmental agencies that seek to address human rights violations are routinely suppressed, though “groups that focus on apolitical issues also face crackdowns” (“Freedom in the World” 2023).
While the right to freedom of association is considered a universal human right, it is not applied in a standard manner. Countries often hold different standards for the freedom, with their own rules and regulations, interpretations, and practices.
References:
“Case Studies: Freedom of Association.” 2023. Case Categories The First Amendment Encyclopedia. https://www.mtsu.edu/first-amendment/encyclopedia/case/12/freedom-of-association.
“Freedom in the World 2021 Country Report: Iran.” 2021. Freedom House. https://freedomhouse.org/country/iran/freedom-world/2021.
“Freedom in the World 2023 Country Report: Iran.” 2023. Freedom House. https://freedomhouse.org/country/iran/freedom-world/2023.
“Iran.” 2023. U.S. Department of State. U.S. Department of State. March 20. https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/iran/.
“Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association on His Follow-up Mission to the United States of America.” 2017
“Overview of Freedom of Association.” 2023. Constitution Annotated. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
UN General Assembly. 1948. Universal Declaration of Human Rights, , 217 A (III), https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
Voule, Clément Nyaletsossi. 2022. Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association in Niger
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G22/388/85/PDF/G2238885.pdf?OpenElement
The World Bank measures freedom of association across 156 countries using a scale ranging from 0 ( very low freedom of association) to 1(very high freedom of association). Looking at high income countries, with the exception of Israel, Kuwait, United Arab Emirates and Singapore, freedom of association is generally reported to be above the world median. Additionally, among wealthier countries, the World Bank data demonstrates that levels of freedom of association have remained generally fixed since [[Probable year:: 1975]], when the data was first collected. In particular, the data reveals Burundi, China, Cuba, Equatorial Guinea, Eritrea, Iran, North Korea, Saudi Arabia, South Sudan, Syria, Tajikistan, Vietnam, and Yemen to have very low levels of freedom of association (below 0.3). Countries with very high levels of freedom of association (above 0.8) were more numerous, including the United States, the United Kingdom, Trinidad and Tobago, Switzerland, Sweden, Sri Lanka, Spain, South Africa, Slovenia, Sierra Leone, Senegal, Portugal, Peru, Papua New Guinea, Panama, Norway, New Zealand, Netherlands, Namibia, Mongolia, Mexico, Mauritius, Malawi, Liberia, Latvia, South Korea, Japan, Jamaica, Italy, Ireland, Honduras, Greece, Ghana, Estonia, Denmark, Czech Republic, Cyprus, Costa Rica, Canada, Benin, Belgium, Australia, and Albania.
An Open Government Partnership (OGP) report reveals additional insights about freedom of association. The report surveys individuals within 78 OGP partnered countries about elements of freedom of association. Furthermore, the survey presents that approximately 25% of freedom of association issues within OGP countries are rooted in restrictive laws on foreign funding. Additionally, the survey demonstrates that OGP countries presenting challenges to freedom of association generally have not taken actions towards better protecting the right in the future. When asked to respond to “In practice, people can freely join any political organization they want”, the majority of OGP countries responded “Agree” or “Strongly Agree”. Though, when asked to reply to “In practice, people can freely join any (unforbidden) political organization they want”, a large number of OGP countries, approximately 20%, responded “Disagree” . This finding demonstrates that in reality, freedom of association may be less protected by countries’ governments than it is perceived to be.
Within the International Labor Organization, the Committee on Freedom of Association (CFA) addresses violations of freedom of association. In their [[Probable year:: 2018]] annual report, the CFA reported 402 freedom of association complaints from Africa, 410 from Asian and the Pacific, 657 from Europe, 1,681 from Latin America and 186 from North America. Furthermore, their data reveals decreases in complaints in Africa, Asia and the Pacfic, and North America and increases in complaints in Latin America in [[Probable year:: 2018]]. 100% of the freedom of association cases examined by the CFA were brought about by workers, rather than employers. 50% of these workers were from the private sector. Violations of trade union rights and civil liberties composed the majority of freedom of association cases investigated by the CFA.
Freedom of expression and freedom of religion are two of the most critical liberties for upholding freedom of association. As noted by the International Commission of Jurists (ICJ), “freedom of expression is frequently a necessary component of the rights to freedom of assembly and association when people join together for an expressive purpose” (ICJ n.d.), indicating that the liberties are intertwined. The United States Supreme Court itself has also stated that it “has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion” (Roberts v. United States Jaycees 1984, 618). In other words, true freedom of association is not possible without the freedom to speak or to practice a religion, both of which often involve congregation and organization among citizens.
Freedom of expression and freedom of religion are often discussed together in court cases, indicating that the two rights are enmeshed. For example, in 2009 the country of Honduras experienced a coup d’etat when then-President Zelaya was forced out of office by members of his own cabinet and other government organs. Many protested this act, including four judges who expressed their support for rule of law by attending demonstrations and conversing with others. These individuals were also a part of the Association of Judges for Democracy (AJD), and used the organization’s platform to speak out against the coup. Once it was found that the judges had and expressed political opinions in these ways, they were stripped of their positions, prevented from holding AJD membership, and convicted of violating the judicial code of ethics (Lopez Lone et al. v. Honduras 2015, 14-48). The plaintiffs, then, appealed the judgements to the Inter-American Court on Human Rights (IACHR), citing infringements on both freedom of expression and freedom of association. The Court eventually confirmed that the rights of the judges had been violated, explaining that their political participation was acceptable “in a context in which democracy is being impaired” (Lopez Lone et al. v. Honduras 2015, 57), while in other cases impartiality of officials is necessary. On the subject of the liberties that were violated and their importance, the Court stated that “it has recognized the relationship that exists between political rights, freedom of expression, the right of assembly and freedom of association, and that these rights, taken as a whole, make the democratic process possible. In situations where there is a breakdown of institutional order following a coup d’état, the relationship between these rights is even clearer, especially when they are all exercised at the same time in order to protest against actions by the public authorities that are contrary to the constitutional order” (Lopez Lone et al. v. Honduras 2015, 52). In addition, it claimed that “the ability to protest publicly and peacefully is one of the most accessible ways to exercise the right to freedom of expression, and can contribute to the protection of other rights” (Lopez Lone et al. v. Honduras 2015, 55). Through this case, the IACHR affirmed that freedom of expression is deeply intertwined with freedom of association.
The critical connection between freedom of expression and freedom of association is further made clear in the African Commission on Human and Peoples’ Rights (ACHPR) case of Williams v. Zimbabwe. Between 2003 and 2013, individuals representing the organization Women of Zimbabwe Arise (WOZA) participated in protests where they used verbal expressions, held placards, and more. As a result, members were arrested multiple times by the Zimbabwean police and charged with attempts to disturb the peace and similar crimes under the state’s criminal code. Even after the Supreme Court of Zimbabwe stepped in and defended the rights of the victims, police continued to perform arbitrary arrests and blocked members of WOZA from peacefully protesting. As a result, members of the organization filed a complaint to the ACHPR stating that the Zimbabwean government had denied them multiple rights, including freedom of association and freedom of expression, as defined by the African Charter (Williams v. Zimbabwe 2021, 1-3). When deciding this case, the Court states that they would analyze the alleged violations of both rights at the same time, because “the rights to freedom of expression, assembly, and association are intertwined to the extent that they are fundamental human rights that form the foundations of democratic societies”(Williams v. Zimbabwe 2021, 18). The Commission also stated that, in the past, they had “found a violation of freedom of expression when the State violated the rights to freedom of association and freedom of assembly” (Williams v. Zimbabwe 2021, 18). Eventually, the body was led to the conclusion that the restrictions placed on freedom of expression, and by default freedom of association, were not justified. As noted in the case report, “associations must be given the freedom to pursue a wide range of activities, including exercising their rights to freedom of expression and assembly” (Williams v. Zimbabwe 2021, 18), summarizing how both rights are critical to each other in the context of the case and in general.
Judiciaries have also often examined freedom of religion and freedom of association together, as can be seen in the European Court of Human Rights (ECHR) case Metropolitan Church of Bessarabia and Others v. Moldova. In 1992, the Metropolitan Church of Bessarabia was created. It applied to the Moldovan government for recognition as a religious denomination, as was required by Moldovan law. However, the application went unanswered by the government, and so for the next seven years the institution alternated between pursuing legal proceedings against the government and reapplying for recognition. In every case, the government ignored or refused the Church’s requests, stating that it was “not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 10). On top of this, members of the Church of Bessarabia were continually harassed, intimidated, assaulted, and prevented from worshiping or conducting services by authorities. As a result, the institution and individual members applied to the ECHR to hear their case on the grounds that it was breaching the freedom of religion as defined by Article 9 of the European Convention on Human Rights. In their assessment, the court sided with the applicants, noting that “refusing to recognise the applicant Church…amounted to forbidding it to operate, both as a liturgical body and as an association” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 24), indicating that religious communities are akin to associations, which are also protected under the Convention. As a result, the Court ruled that the Moldovan government had violated the right to freedom of expression, and added that the regime’s “refusal to recognise, coupled with the authorities’ stubborn persistence in holding to the view that the applicants could practice their religion within the Metropolitan Church of Moldova, infringed their freedom of association, contrary to Article 11 of the Convention” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 35). The ruling, then, exemplifies how associations can be religious in nature, and religions can act as associations, meaning that the protection of religion is critical to upholding freedom of association, and vice versa.
References
International Commission of Jurists. “Chapter four: Freedom of Assembly, Association, and Expression.” Accessed July 5, 2023. https://www.icj.org/sogi-casebook-introduction/chapter-four-freedom-of-assembly-association-and-expression/
Lopez Lone et al. v. Honduras. Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 30 ¶ 14-18, 52, 55, 57 (Oct. 6, 2015).
https://www.corteidh.or.cr/docs/casos/articulos/seriec_302_ing.pdf
Metropolitan Church of Bessarabia and Others v. Moldova, Application no. 45701/99, ECtHR of 2001. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59985%22]}
Roberts v. United States Jaycees, 468 U.S. 609 (1984). https://tile.loc.gov/storage-services/service/ll/usrep/usrep468/usrep468609/usrep468609.pdf
Williams v. Zimbabwe, African Comm. Hum. & Peoples’ Rights, Comm. No. 446/13 (February 25, 2021) https://rfkhr.imgix.net/asset/WOZA-Case-_-ACHPR-Full-Decision-compressed-2.pdf
The United States Supreme Court has recognized two types of associative freedoms protected under the Constitution; expressive and intimate (Congress, Amdt 1.8.1). Expressive association covers an individual’s right to form and join groups or unions that express a collective purpose, while intimate refers to an individual’s right to maintain private associations (Hudson Jr., 2009). Freedom of association is covered under Article 20 of the Universal Declaration of Human Rights and Article 22 of the International Covenant on Civil and Political Rights. The United States Court system has recognized both aspects of freedom of association through multiple court cases such as Boy Scouts of America v. Dale and Roberts v. United States Jaycees (Hudson Jr., 2009). The United Nations Human Rights Office states “Freedom of association is an essential element of democracy that serves as a vehicle for the exercise of many other rights guaranteed under international law, including the right to freedom of expression (UN Human Rights. 2023).
Examples of expressive association include interacting and organizing amongst other citizens to collectively express and promote common interests, as well as the right to form and join trade unions, or work for non-governmental organizations(NGOs). Within the intimate aspect of association, those in democracies have a right to hold private relationships and associations without interference. In major democratic regimes such as the United States and the United Kingdom, freedom of association is respected and protected. In the United States, “officials respect the constitutional right to assembly; laws and practices give wide freedom to NGOs and activists to pursue civic and policy agendas; and federal law guarantees trade unions the right to organize and engage in collective bargaining (Freedom House, 2023).” In the United Kingdom, the freedom to assemble, go on strike, and bargain collectively are also all respected. NGOs may also operate freely, and workers have a right to organize trade unions, and even their own Labour Party. While perfect freedom is not always the case, as seen in examples of police brutality against protesters in the United States, and in the UK with the Police, Crime, Sentencing, and Courts Act of 2022, freedom of association is generally upheld and protected within democratic regimes.
However, global democracy is on the decline, and in the 2015 John Hopkins University Press’ Journal of Democracy, Douglas Rutzen discusses how authoritarianism is placing an increasing threat to civil society. He says, “Since 2012, more than 160 laws constraining the freedoms of association or assembly have been enacted or proposed in 60 countries. This trend is consistent with the continuing decline of democracy worldwide(Rutzen, 2015, 30).” Freedom in the World 2023 shows us that 2022 was the 17th consecutive year of a global decline in freedom. As freedom of association is recognized by international law, this is not reflected when exercised within authoritarian regimes. In Countries such as Venezuela, freedom of association is strongly restricted and those who exercise this right can face major consequences. “The government is being investigated for crimes against humanity regarding how they treat opposition protests; Human Rights activists and members of NGOs face harassment, threats, and arrest; and the government has cracked down on labor unions with opposition unions and several labor union leaders have been arrested or killed (Freedom House, 2023)”. The autocratic regime of Kazakhstan also has strict restrictions on those who assemble and protest. Those who fail to follow these restrictions are subject to detainment, torture, and death as seen in the 2022 gas price protests in western Kazakhstan. “NGOs continue to operate but face government harassment when they attempt to address politically sensitive issues. There are extensive legal restrictions on the formation and operation of NGOs…Workers have limited rights to form and join trade unions or participate in collective bargaining. The government is closely affiliated with the largest union federation and major employers, while genuinely independent unions face repressive actions by the authorities. The country’s major independent trade union body was dissolved in 2017(Freedom House, 2023).” Intimate association is also not free within an autocracy as seen in Russia. Although private relationships are allowed, social media is heavily monitored, minority religious groups are often targeted, and political repression has impacted private discussions with cases of citizens reporting others for expressing views or associations in opposition to the government. “The government restricts freedom of assembly. Overwhelming police responses, the excessive use of force, routine arrests, and harsh fines and prison sentences have largely discouraged unsanctioned protests, while pro-Kremlin groups are able to demonstrate freely… The government has also relentlessly persecuted NGOs, particularly those that work on human rights and governance issues. Civic activists are frequently arrested on politically motivated charges(Freedom House, 2023).” Exercising freedom of association within an autocratic regime is heavily restricted and poses a major risk. While sometimes possible to assemble and protest, it is not without registration and approval, being met with police force, or facing other significant consequences.
As the middle ground between democracy and autocracy, hybrid regimes recognize freedom of association accordingly. Freedom House ranks countries on a scale of 1-4; democratic regimes typically place at a 3 or 4 regarding freedom of association, whereas autocratic regimes place at a 0 or 1. However, hybrid regimes consistently place at a 1, 2, or 3 depending on the nation. As declared by the European Parliament, Hungary has now transitioned from a deficient democracy, into a “hybrid regime of electoral autocracy. (European Parliament Press Release, 2022).” However, according to Freedom House, Hungary exemplifies a true hybrid regime with the possession of liberty and limitations to the freedom of association. The freedom to assemble is constitutionally protected and often respected, scoring a 4/4; however, associations with NGOs that go against the government agenda are subjected to stigmatization, monitoring, and fines placing associative freedom at a 2/4 (Freedom House, 2023). The hybrid regime of Jordan, a constitutional monarchy with an elected lower house in parliament, has a registration system for the formation of associations that must be approved by authority (Makary, 2007). In the International Journal of Not-for-Profit Law’s 10th volume issued in 2007, Marc Makary examines the case studies of Jordan and Lebanon and the guarantees of freedom of association in non-democratic environments. He states “While freedom of association in Jordan is protected by the Constitution, its laws are contrary to the standards for freedom of association set by International Law. Article 16 of the Constitution grants Jordanians the right ‘to establish societies and political parties provided that the objects of such societies and parties are lawful, their methods peaceful, and their by-laws not contrary to the provisions of the Constitution.’ While Article 16 seems to provide space for individuals to establish associations, its paragraph (iii) places the establishment of associations and political parties under the control of the law with Jordanian Law N° 33 of 1966 granting absolute discretion to the Minister of Social Affairs or the Minister of Interior to register associations, ban undeclared associations, and establish long and burdensome administrative procedures (Makary’s, 2007). ” Makary’s findings have not changed much since 2007, as the current hybrid regime strictly limits free assembly, heavily monitors and regulates NGO operations in an arbitrary manner, and limits the industries in which unions may form with the limited right to strike (Freedom House, 2023). Hungary was on the more positive end of the spectrum with middle averaging scores, contrary to Jordan with scores of 1/4 and 0/4 regarding freedom of association.
Hybrid systems can fluctuate how much freedom they allow for people to associate with each other. Democratic regimes remain at the top levels of ability regarding the right to exercise freedom of association without interference; whether that be through assembly, union membership, expressive group discussion, or intimate association, citizens of democracies face little to no limits. In contrast, Autocratic regimes place heavy restrictions and limits on the exercise of this freedom and often punish those who do. While the actions do not vary much depending on the regime, the ability to do so freely without interference is truly where the differences lie.
European Parliament. 2022. “MEPs: Hungary Can No Longer Be Considered a Full Democracy. News. European Parliament.” Www.europarl.europa.eu. September 15, 2022. https://www.europarl.europa.eu/news/en/press-room/20220909IPR40137/meps-hungary-can-no-longer-be-considered-a-full-democracy.
Freedom House. 2023. “ Freedom in the World 2023 Country Report.” Freedom House. 2023. https://freedomhouse.org/explore-the-map?type=fiw&year=2023
Gorokhovskaia, Yana, Adrian Shahbaz, and Amy Slipowitz. 2023. “Marking 50 Years in the Struggle for Democracy.” Freedom House. 2023. https://freedomhouse.org/report/freedom-world/2023/marking-50-years.
Jr, David L. Hudson. 2009. “Freedom of Association.” Www.mtsu.edu. 2009. https://www.mtsu.edu/first-amendment/article/1594/freedom-of-association.
Makary, Marc. “Notification or Registration? Guarantees of Freedom of Association in Non-Democratic Environments: Case Studies of Lebanon and Jordan.” n.d. ICNL. Accessed June 19, 2023. https://www.icnl.org/resources/research/ijnl/notification-or-registration-guarantees-of-freedom-of-association-in-non-democratic-environments-case-studies-of-lebanon-and-jordan.
Rutzen, Douglas. "Authoritarianism Goes Global (II): Civil Society Under Assault." Journal of Democracy, vol. 26 no. 4, 2015, p. 28-39. Project MUSE, doi:10.1353/jod.2015.0071.
United Nations Human Rights. 2023. “OHCHR Freedom of Assembly and of Association.” n.d. OHCHR. https://www.ohchr.org/en/topic/freedom-assembly-and-association#:~:text=Everyone%20has%20the%20rights%20to,protests%2C%20both%20offline%20and%20online.
United States Congress. Constitution Annotated. Amdt1.8.1 Overview of Freedom of Association. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/
Freedom of Association refers to the right to associate and interact with organizations and individuals in terms of organizing and demanding common interests. The Office of the United Nations High Commissioner for Human Rights defines this right as, “The right to freedom of association involves the right of individuals to interact and organize among themselves to collectively express, promote, pursue and defend common interests. This includes the right to form trade unions.”(OHCR). This right is stated under the 20th article of the United Nations Declaration of Human Rights, which states, “(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.”(United Nations 1948). This right is generally associated with labor unions and is stated as the right of ‘Freedom of Association and Collective Bargaining’ according to the International Labour Organization which is a United Nations body that advances economic justice and rights such as the freedom of association.
This right is generally interpreted and defined differently under different constitutions pertaining to the various importance of the right to the environment and culture of the country. For example the United States’ constitution does not explicitly state the right to freedom of association rather in the first amendment it states, “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.”(US Constitution Annotated 2022). Therefore the United States supports a form of association and does not allow the prohibition of ‘assembly’ of individuals ‘peaceably’. This right is often associated and phrased in constitutions as the ‘Freedom of Association and Collective Bargaining’ this implies a distinction between the two concepts; with collective bargaining being associated with the demands rather than the organization of the individuals.
Liberal democratic countries often support this right based on common understandings from the English philosopher John Locke who in his writing of "Two Treatises of Government". Locke championed three fundamental unalienable rights which are: the right to life, liberty, and property. As such he does not explicitly state the right of freedom of association, yet he does describe the right of individuals to join together in pursuit of their interests. Locke argues, “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”(Locke 1689) individuals have the natural right to associate with others based on mutual consent, forming communities and engaging in collective endeavors. He believed that individuals should have the liberty to create associations, including religious congregations, trade unions, and political organizations, in order to protect and advance their shared interests.
Furthermore, John Locke introduced the concept of the ‘Social Contract’ exploring the idea of a collective agreement that establishes the norms, behaviors, and rules necessary for the formation of a society and a functioning government. John Locke, in his influential work "Two Treatises of Government," argued that individuals willingly enter into a social contract to form a civil society. This organized entity consent to be governed by an authority that protects their natural and unalienable rights of life, liberty, and property. Locke argues that if the government violates this social contract by infringing upon these fundamental rights, they have the right to resist and potentially overthrow the government.
The idea of the social contract highlights the notion of individuals entering into a collective agreement to form a society and a government that serves their common interests and protects their rights. The concepts put forth by Locke contribute to the understanding of the relationship between individuals and the government, as well as the rights and responsibilities that arise from this social contract in terms of freedom of association.
Furthermore, this right according to international organizations, specifically the International Trade Union Confederation, which has utilized an index to rank and identify the extent of the adoption of this right around the world(The International Trade Union Confederation 2022). According to the index, all countries generally have a clause or article that pertains to a form of right of freedom of association but many countries obstruct this right through justifications of ‘Free Speech’ of businessmen against their employees, ‘National Interests’, among other reasons for infractions on this right.
Whereas, the exceptions of the right generally exist in different frequencies, it is generally unjustified according to the ILO and ITUC to obstruct this freedom, whereas according to the OHCR in their comparative study Authoritarian regimes tend to obstruct this freedom for their political and national interests and while they may allow association to exist it would ultimately be ineffective. For example, the ILO details in its ‘Arab States Workers' Organizations’ page figures which detail the limitations of the application of the right of freedom of association in which a multiplicity of Arab countries do not allow for migrant workers to join trade unions. This is seen as the ILO states, “With the exception of Bahrain and Oman, across the Arab States migrant workers are excluded from trade union representation by law.” This shows a general common exception based on the environment of freedom of association in the case of the Arab states, many of which have a significant labor pool of expatriate workers.
To conclude, while most states are part of the International Labour Organization (ILO) and almost all countries recognize the constitutional right to association, the limitations and exceptions to this right vary significantly based on the specific environment and cultural context.
Bibliography
Constitution Annotated. 2022. “U.S. Constitution - First Amendment Resources Constitution Annotated Congress.gov Library of Congress.” Constitution.congress.gov. 2022. https://constitution.congress.gov/constitution/amendment-1/#:~:text=Congress%20shall%20make%20no%20law.
ILO. n.d. “8.Freedom of Association and Collective Bargaining (Decent Work for Sustainable Development (DW4SD) Resource Platform).” Www.ilo.org. https://www.ilo.org/global/topics/dw4sd/themes/freedom-of-association/lang--en/index.htm.
———. n.d. “Workers’ Organizations (Arab States).” Www.ilo.org. https://www.ilo.org/beirut/areasofwork/workers/lang--en/index.htm.
Locke, John. 1689. Two Treatises of Government. S.L.: Blurb.
McCombs School of Business. 2022. “Social Contract Theory.” Ethics Unwrapped. 2022. https://ethicsunwrapped.utexas.edu/glossary/social-contract-theory#:~:text=Social%20contract%20theory%20says%20that.
“OHCHR Freedom of Assembly and of Association.” n.d. OHCHR. https://www.ohchr.org/en/topic/freedom-assembly-and-association#:~:text=The%20right%20to%20freedom%20of.
Rousseau, Jean-Jacques. 1964. The First and Second Discourses. Bedford Books.
———. 1987. On the Social Contract. Indianapolis: Hackett Publishing Company, Inc. (Orig. pub. 1762.).
The Editors of Encyclopedia Britannica. 2016. “Social Contract.” In Encyclopædia Britannica. https://www.britannica.com/topic/social-contract.
The International Trade Union Confederation. 2022. “2022 ITUC Global Rights Index.” The International Trade Union Confederation. Sharan Burrow, General Secretary. https://files.mutualcdn.com/ituc/files/2022-ITUC-Rights-Index-Exec-Summ-EN_2022-08-10-062736.pdf.
United Nations. 1948. “Universal Declaration of Human Rights - English.” OHCHR. United Nations. December 10, 1948. https://www.ohchr.org/en/human-rights/universal-declaration/translations/english.
The Freedom of Association only became formally recognized in the US in 1958 with the landmark NAACP v Alabama SCOTUS decision (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Just after the Brown v Board of Education ruling the NAACP became incredibly active in Alabama. When the state tried to demand a list of the organization's members, the NAACP refused. Freedom of Association can be found in the majority opinion where Justice John Marshall Harlan II wrote “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Since the NAACP was allowed to organize their political group as an association and were afforded the privacy and rights they argued in the case.
Prior to this, this right can be found in several U.S. cases leading up to the 1958 opinion. The Supreme Court did not always recognize Freedom of Association however. In 1886, a case centered on the forming of state militias, the Court declared that the government had the ability to regulate and prohibit associations “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies.” (Cornell Legal Information Institute). The right to protest is clearly laid out here, while the Freedom of Association is denied. Later on, in a 1945 case, the Court applied the freedom of assembly stating, “[i]t was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” This allowed unions to discuss benefits and consequences of organizing (“Thomas v. Collins, 323 U.S. 516 (1945)”). Throughout the 1950s, the Court started to refer to the freedom of association as a separate but related freedom, close to speech and assembly, found in the First Amendment. By 1958, the Court deemed it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties like the freedom of speech. (Cornell Legal Information Institute).
Internationally, the earliest autonomous associations were founded by religion. The Roman Catholic Church was the most important institution in medieval Western Europe. It kept its own organization and self-government, even in the several states where it served as the recognized religion (“Freedom of Association: History”). They encouraged trade associations, guilds for artisans, and other associations, frequently with the consent of the nation's ruler, who was typically a monarch (“Freedom of Association: History”). Outside of the US, one of the first instances of the debate regarding Freedom of Association in terms of organized labor was in Great Britain. At the end of the 18th century, the Comination Acts suppressed attempts to organize unions (“Freedom of Association: History” n.d.). This caused radical reformers to protest, driving workers to violence. Eventually, the government backed the repeal of the Acts in 1824. This repeal served as Britain’s first major increase in the ability to organize and unionize. Despite some infringements on labor rights in the 1980s and 1990s, the Trade Union Congress is still a strong force in the United Kingdom’s politics and economy (“Freedom of Association: History”). This was an early implication through labor rights that Freedom of Association existed.
In order to address bad working conditions and social unrest, the ILO (International Labor Organization) devised a tripartite organization that included representatives from industry, labor, and government (“Freedom of Association: History”). The International Labor Organization (ILO) approved Convention No. 87 on freedom of association in 1948, and Convention No. 98 on the right to collectively bargain in 1949. As of 2013, 152 countries had ratified Convention No. 87, and 163 had ratified Convention No. 98, demonstrating how highly accepted these treaties are around the world (“Freedom of Association: History”). There are eight fundamental ILO conventions, some of which forbid child labor, forced labor, and employment discrimination. Only 14 of the 189 international standards treaties have been ratified by the US Senate, and only two of the eight core agreements (on forced labor in 1991 and child labor in 1999) have been ratified (“Freedom of Association: History”).
On the other hand, nations in the former Soviet Union approved ILO treaties without ever putting them into use. Communist nations argued that since the Communist Party and its affiliated labor organizations represented workers' interests, there was no need for free trade unions, which are highly specific to certain trades (“Overview of Freedom of Association”). Thus, Soviet trade unions were the antithesis of free association and an "anti-trade union" paradigm. The official unions didn't shield workers from exploitation; instead, they made them labor longer and harder to satisfy government demands (Constitution Annotated). In democratic nations, private companies occasionally adopted a similar strategy known as "company unionism," but the Soviet Union's methods were systematic in nature and a crucial component of the totalitarian regime. The Soviet Union imposed its model on its Eastern European satellite governments and exported it to other communist nations (Constitution Annotated). The largest country still using a Communist Party-controlled official union structure is the People's Republic of China (Constitution Annotated).
One of the ILO's greatest historical contributions was the inspiration and assistance it provided to Poland's Solidarity movement, which saw millions of workers rise up starting in 1980 and demand the implementation of Conventions 87 and 98 as well as the establishment of the right to form free unions (International Labor Organization 1982). As a result of the movement's success—10 million workers joined within a month of Solidarity's founding—a free trade union was officially recognized for the first time in a Communist nation. The Polish Solidarity Revolution had a tremendous impact on the entire Soviet bloc (International Labor Organization 1982). Solidarity's success was a rejection of the previous regimes. After seven years of nonviolent protest, Polish workers mounted a nationwide strike that compelled the government to re-legalize Solidarity and concede to partially free elections in June 1989, which ultimately led to the overthrow of the government (International Labor Organization 1982). Soon after, the Soviet Union as a whole disintegrated, paving the way for the rise of several new republics. Small clandestine publications that explained to employees their rights under ILO treaties served as the foundation for the entire operation (International Labor Organization 1982).
References:
Constitution Annotated. “Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
Cornell Legal Information Institute.“Overview of Freedom of Association.” LII / Legal Information Institute. Accessed September 11, 2023a. https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association.
“PRESSER v. STATE OF ILLINOIS.” LII / Legal Information Institute. Accessed September 11, 2023b. https://www.law.cornell.edu/supremecourt/text/116/252.
“Freedom of Association: History.” Democracy Web. Accessed September 11, 2023. https://democracyweb.org/freedom-of-association-history.
International Labor Organization. 1982. “Interim Report - Report No 217, June 1982.” June 1982. https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2900704.
“NAACP v. ALABAMA, 377 U.S. 288 (1964).” FindLaw. Accessed September 11, 2023. https://caselaw.findlaw.com/court/us-supreme-court/377/288.html.
“Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
“Thomas v. Collins, 323 U.S. 516 (1945).” Justia Law. Accessed September 11, 2023. https://supreme.justia.com/cases/federal/us/323/516/.
Article 32 of the 1964 Constitution articulated protections of Freedom of Assembly and Freedom of Association.
Freedom of Assembly: "Afghan citizens have the right to assemble unarmed, without prior permission of the State, for the achievement of legitimate and peaceful purposes, in accordance with the provisions of the law."
Freedom of Association: "Afghan citizens have the right to establish, in accordance with the provisions of the law, associations for the realisation of material or spiritual purposes."
Freedom of association is mentioned in the Afghanistan constitution of 2004 under Chapter II article 35. However, according to a US State Department 2022 report, the Taliban has restricted freedom of association and assembly and does not respect the constitution.
References:
1964 Afghanistan Constitution: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=afghanenglish
2004 Afghanistan Constitution: https://www.constituteproject.org/constitution/Afghanistan_2004?%20lang=en
US State Department AFGHANISTAN 2022 Human Rights Report: https://www.state.gov/wp-content/uploads/2023/03/415610_AFGHANISTAN-2022-HUMAN-RIGHTS-REPORT.pdf +
Article 199 of the 1928 Fundamental Statute of the Kingdom of Albania guaranteed freedom of association "in conformity with the law." Article 53 of the 1976 Albanian Constitution states that “citizens enjoy the freedom of speech, the press, organization, association, assembly and public manifestation. The state guarantees the realization of these freedoms, it creates the conditions for them, and makes available the necessary material means” (“The Albanian Constitution of 1976").
Freedom of Association is also asserted in the Albanian Constitution of 1998, in Chapter III, Article 46.
References:
1928 Fundamental Statute of the Kingdom of Albania: https://www.hoelseth.com/royalty/albania/albconst19281201.html
1976 Albania Constitution: https://data.globalcit.eu/NationalDB/docs/ALB%20The%20Constitution%20of%20the%20Peoples%20Socialist%20Republic%20of%20Albania%201976.pdf
1998 Albania Constitution: https://www.constituteproject.org/constitution/Albania_2012 +
Article 19 of the 1963 Algerian Constitution states that “the Republic guarantees freedom of the press and of other means of information, freedom of association, freedom of speech and public intervention, and freedom of assembly” (Middle East Journal, [[Probable year:: 1963]]) .
References:
“The Algerian Constitution.” The Middle East journal 17, no. 4 (1963): 446–450. +
The first mention of freedom of association in Constitution of the Principality of Andorra of 1993 is mentioned in Chapter III, Article 17
https://www.constituteproject.org/constitution/Andorra_1993#s101 +
Article 22 of the 1975 Angolan Constitution states: "Within the framework of the realization of the basic objectives of the People's Republic of Angola, the law will ensure freedom of expression, assembly, and association."
Freedom of assembly in Angola is asserted in the 1992 Angolan constitution, part II, article 32: "Freedom of expression, assembly, demonstration and all other forms of expression shall be guaranteed."
The 2010 constitution of Angola guarantees freedom of association in Chapter II, section I, article 48
References:
1975 Angola Constitution: “The Constitution of the People’s Republic of Angola.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.journals/rsl2&i=197
1992 Angola Constitution: https://constitutionnet.org/sites/default/files/Angola%20Constitution.pdf
2010 Angola Constitution: https://www.constituteproject.org/constitution/Angola_2010 +
The first assertion of freedom of association is mentioned on the Antigua and Barbuda constitution order 1981 ratified October 31st Chapter II, article 13(1)
References:
The 1981 Constitution of Antigua and Barbuda: https://www.legislation.gov.uk/uksi/1981/1106/pdfs/uksi_19811106_en.pdf +
The first assertion of the freedom of association of Argentina can be found in the Constitution of the Argentine Nation of 1853 that was ratified May 25th in Part I, Chapter 1, article 14.
References:
http://www.biblioteca.jus.gov.ar/Argentina-Constitution.pdf
https://www.constituteproject.org/constitution/Argentina_1994 +
The first assertion of freedom of association is mentioned in Article 25 of the 1995 Constitution of the Republic of Armenia:
"Everyone has the right to form associations with other persons, including the right to form or join trade unions. Every citizen is entitled to form political parties with other citizens and join such parties. These rights may be restricted for persons belonging to the armed forces and law enforcement organizations. No one shall be forced to join a political party or association."
References:
http://www.parliament.am/legislation.php?sel=show&ID=2425&lang=eng +
The right to association is mentioned in the ICCPR article 22. Australia ratified this treaty in 1980. In the Australian constitution there is no free-standing right to association.
References:
https://www.alrc.gov.au/wp-content/uploads/2019/08/ip46_ch_4._freedom_of_association.pdf
https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-association +
Freedom of association was articulated in Article 12 of Austria's “Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm” in 1867.
According to a report on human rights practices from the US State Department, "The constitution and law provide for the freedoms of peaceful assembly and association, and the government generally respected these rights."
Austria ratified the ILO "Freedom of Association and Protection of the Right to Organise Convention" in 1950.
References:
1867 Basic Law: https://www.servat.unibe.ch/icl/au03000_.html
US State Department Report on Human Rights Practices in Austria: https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/austria/
1950 International Labor Organization Convention: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312232 +
The first assertion of freedom of association in the 1995 constitution of the Azerbaijan Republic is mentioned under Chapter III Article 58 section I through IV.
References:
https://constitutionnet.org/sites/default/files/Azerbaijan%20Constitution.pdf
Blaustein, Albert P., and Gisbert H. Flanz. Constitutions of the Countries of the World; a Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies. "Azerbaijan Republic, Booklet 2, 1996" Permanent ed. Dobbs Ferry, N.Y: Oceana Publications, 1971. +
The first assertion of freedom of association in the 1973 Constitution of the State of Bahrain that was ratified May 26th is mentioned under chapter III, article 27: "Freedom to form associations and trade unions on a national basis and for lawful objectives and by peaceful means shall be guaranteed in accordance with the conditions and procedures prescribed by the law. No one shall be compelled to join or remain in any association or union."
One finds similar language in the 2002 Constitution: "The freedom to form associations and unions on national principles, for lawful objectives and by peaceful means is guaranteed under the rules and conditions laid down by law, provided that the fundamentals of the religion and public order are not infringed. No one can be forced to join any association or union or to continue as a member."
References:
https://www.servat.unibe.ch/icl/ba01000_.html
https://www.constituteproject.org/constitution/Bahrain_2017?lang=en +
Article 38 of the 1972 Bangladesh Constitution asserts: "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order."
References:
http://hrlibrary.umn.edu/research/bangladesh-constitution.pdf +
Article 21 of the 1966 Barbados Constitution held: "1. Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests. 2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. that is reasonably required in the interest of defence, public safety, public order, public morality or public health; or
b. that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
c. that imposes restrictions upon public officers or members of a disciplined force."
References:
https://pdba.georgetown.edu/Constitutions/Barbados/barbados66.html +
The first assertion of freedom of association in the Republic of Belarus is mentioned in the Belarus constitution of 1994, ratified March 15 on section II, article 36. The constitution was amended through a referendum November 26th, 1996, article 36 remains the same.
References:
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzby0006&id=4&men_tab=srchresults
https://constitutionnet.org/sites/default/files/Belarus%20Constitution.pdf
https://www.venice.coe.int/webforms/documents/?pdf=CDL(2003)065-e +
Belgium has one of the oldest constitutions in the world. The first assertion of freedom of association is mentioned in the Constitution of Belgium of 1831 that was ratified February 7th.Freedom of association is mentioned under title II, article 20. In the latest amendment it is mentioned under article 27.
https://www.constituteproject.org/constitution/Belgium_1831
https://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/GrondwetUK.pdf +
The first assertion of freedom of association in Belize is mentioned in the Belize Constitution of 1982 under Part II, Article 13. Section one articulated the right: "Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests or to form or belong to political parties or other political associations." Section two articulated exceptions and limitations:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision-
that is required in the interests of defence, public safety, public order, public morality or public health;
that is required for the purpose of protecting the rights or freedoms of other persons;
that imposes restrictions on officers in the public service that are required for the proper performance of their functions; or
that is required to prohibit any association the membership of which is restricted on grounds of race or colour."
https://www.constituteproject.org/constitution/Belize_2011 +
The first assertion of Freedom of Association in the Republic of Benin is mentioned in the Constitution of Benin that was adopted at the referendum on December 2nd, 1990 under Title II, article 25
https://constitutionnet.org/sites/default/files/Benin%20Constitution%20-%20English%20Summary.pdf +
Freedom of association is asserted in the Constitution of Bhutan of 2008, enacted July 18th under Article 7(12): "A Bhutanese citizen shall have the right to freedom of peaceful assembly and freedom of association, other than membership of associations that are harmful to the peace and unity of the country, and shall have the right not to be compelled to belong to any association."
References:
Bhutan 2008 Constitution: https://www.constituteproject.org/constitution/Bhutan_2008 +
First assertion of Freedom of association of Bolivia is mentioned in the Constitution of 2009 of the Plurinational State of Bolivia under Chapter III, Section I, Article 21 (4)
https://www.constituteproject.org/constitution/Bolivia_2009 +
First assertion of Freedom of association in Bosnia and Herzegovina is first mentioned in the Constitution of the Federation of Bosnia and Herzegovina of 1995 under Chapter II, Article 2, Section 3(i)
https://advokat-prnjavorac.com/legislation/constitution_fbih.pdf +
According to Article 13 of the 1966 Botswana Constitution:
"(1) Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his or her interests. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision— (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; (c) that imposes restrictions upon public officers, employees of local government bodies, or teachers; or (d) for the registration of trade unions and associations of trade unions in a register established by or under any law, and for imposing reasonable conditions relating to the requirements for entry on such a register (including conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or of members necessary to constitute an association of trade unions qualified for registration) and conditions whereby registration may be refused on the grounds that any other trade union already registered, or association of trade unions already registered, as the case may be, is sufficiently representative of the whole or of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
References:
1966 Constitution of Botswana: https://botswanalaws.com/consolidated-statutes/constitution-of-botswana
Brazil’s constitution ([[Probable year:: 1988]]) has exceptionally detailed freedom of association provisions. Title II-I-5 states that:
- there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;
- creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations;
- associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;
- no one can be compelled to join an association or to remain in one;
- when expressly authorized, associations have standing to represent their members judicially and extrajudicially +
According to the US Department of State in 2021, "The law does not provide for freedom of association. The law requires formal groups, including religious, social, business, labor, and cultural organizations, to register with the Registrar of Societies and provide regular reports on membership and finances."
References:
2021 Country Reports on Human Rights Practices: Brunei: https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/brunei/ +
Article 83 of the 1879 Constitution of the Principality of Bulgaria states: "Bulgaria subjects have the right of forming associations without any previous authorization, on condition that the object in view of, and the means employed by, these
assoclatIons be not prejudicial to public order, religion, or good morals."
After independence, Article 83 of the revised version of the 1879 Constitution as amended to 1911 continued to guarantee freedom of association using very similar language.
References:
1879 Constitution of the Principality of Bulgaria: English translation of the Bulgarian original text of the Constitution of 1879 6 (2014) Chapter XIV: The Ordinary National Assembly: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0031&id=8&men_tab=srchresults
1879 Constitution as amended to 1911 : English text of the Constitution of 1879, as amended to 1911 95 (2010) Section 10:
The Right of Petition: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0005&id=8&men_tab=srchresults +
According to Article 7 of the 1959 Constitution of Upper Volta, "The political parties and groups participate in the expression of suffrage. They form themselves and exercise their activities freely within respect for the democratic principles and of the sovereignty of the State."
According to Article 21 of the 1991 Constitution of Burkina Faso, as revised in 2015, "The freedom of association is guaranteed. Every person has the right to constitute associations and to participate freely in the activities of the associations created. The functioning of the associations must conform to the laws and regulations in force. The syndical freedom is guaranteed. The unions exercise their activities without constraint and without limitation other than those specified by the law."
References:
English Translation of the French Official Original Text of the Constitution of 1959 3-4 (2021) Title I: Of the State and of Sovereignty: https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzbf0033&id=3&collection=cow&index=
1991 Constitution of Burkina Faso 1991 as revised in 2015: https://www.constituteproject.org/constitution/Burkina_Faso_2015 +
In the 1962 Constitution of Burundi, Article 18 provides for freedom of association: "All Barundi have the right of association and of assembly, except in regard to associations or assemblies which are illegal or contrary to morals."
English translation of the Constitution of 1962, "Title II: Barundi and their Rights," Constitution of the Kingdom of Burundi : 20-21: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbi0002&id=3&men_tab=srchresults +
Article 10 of the 1947 Constitution states: "All Cambodians have a right to associate freely, unless their
association endangers or tends to endanger the liberties guaranteed by the
present Constitution. They are also granted liberty of meeting."
According to Article 42 of the 1993 Constitution, "Khmer Citizens have the rights to establish associations and political parties. These rights shall be determined by law. Khmer citizens may take part in mass organizations to work together to protect national achievement and social order."
https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzkh0002&collection=cow
https://www.constituteproject.org/constitution/Cambodia_2008?lang=en +
The 1961 Cameroon Constitution offered a general guarantee of those rights in the UDHR (of which one is freedom of association): "The Federal Republic of Cameroon is democratic, secular and social. It shall ensure the equality of all citizens before the law. It affirms its adherence to the fundamental freedoms set out in the Universal Declaration of Human Rights and the Charter of the United Nations." However, the 1961 Constitution did not discuss the right to freedom of association specifically.
Freedom of association is specifically guaranteed in the 1972 Cameroon Constitution: "the freedom of communication, of expression, of the press, of assembly, of association, and of trade unionism, as well as the right to strike shall be guaranteed under the conditions fixed by law"
https://condor.depaul.edu/mdelance/images/Pdfs/Federal%20Constitution%20of%20Cameroon.pdf
https://www.constituteproject.org/constitution/Cameroon_2008?lang=en +
Chapter 345 Section 5 of Saskatchewan’s Bill of Rights ([[Probable year:: 1947]]) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”
Part 1 of the Canadian Bill of Rights ([[Probable year:: 1960]]) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution. +
Article 51 of the 1980 Cape Verde Constitution articulated the right to freedom of association.
https://www.constituteproject.org/constitution/Cape_Verde_1992 +
Article 12 of the 1994 Constitution stated: "Every citizen has the right to freely constitute associations, groups, societies, and establishments of public utility under reservation of conformity to laws and regulations. The associations, groups, societies and establishments, of which the activities are contrary to public order as well and the unity and the cohesion of the Central African people, are prohibited."
https://g7plus.fd.uc.pt/pdfs/CentralAfricanRepublic.pdf +
According to Article 27 of the 1996 Constitution of Chad: "The freedoms of opinion and of expression, of communication, of conscience, of religion, of the press, of association, of assembly, of movement, of demonstration and of procession are guaranteed to all. They may only be limited for the respect of the freedoms and the rights of others and by the imperative to safeguard the public order and good morals. The law determines the conditions of [their] exercise."
https://www.constituteproject.org/constitution/Chad_2005 +
The 1925 Constitution of Chile guaranteed "The right of association without prior license and in conformity with the law."
https://www.constituteproject.org/constitution/Chile_1925?lang=en +
Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) stated that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.” https://archive.org/details/jstor-2212590/page/n1/mode/2up
Under the current government of China, Article 35 of the 2018 Constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China shall enjoy freedom of speech, the press, assembly, association, procession and demonstration.” http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml +
According to Article 38 of the 1991 Colombia Constitution: The right of free association for the promotion of various activities that individuals pursue in society is guaranteed."
https://constituteproject.org/constitution/Colombia_2015?lang=en +
Article 21 of the 2018 Comoros Constitution asserts: "The freedom of thought and of expression, of association, of intellectual, artistic or cultural creation, of protest and the other freedoms consecrated by the Constitution, the laws and by the international law received within the juridical internal order, are guaranteed." +
According to Article 25 of the 1949 Constitution, "The inhabitants of the Republic have the right of association for lawful purposes. No one may be compelled to form a part of any association whatsoever."
http://hrlibrary.umn.edu/research/costarica-constitution.html +
Article 43 of the 1991 Croatia Constitution states: "Everyone shall be guaranteed the right to freedom of association for the purposes of protection of their interests or promotion of their social, economic, political, national, cultural and other convictions and objectives. For this purpose, everyone may freely form trade unions and other associations, join them or leave them, in conformity with law. The exercise of this right shall be restricted by the prohibition of any violent threat to the democratic constitutional order and independence, unity and territorial integrity of the Republic of Croatia."
https://www.constituteproject.org/constitution/Croatia_2013?lang=en +
Article 54 of the 1976 Cuba Constitution states: "The rights of assembly, demonstration and association are exercised by workers, both manual and intellectual; peasants; women; students; and other sectors of the working people, [rights] to which they have the necessary ability (los medios necesarios) to exercise. The social and mass organizations have all the facilities they need to carry out those activities in which the members have full freedom of speech and opinion based on the unlimited right of initiative and criticism."
https://constituteproject.org/constitution/Cuba_2002 +
Article 21, Section 2 of the 1960 Cyprus Constitution states: "Every person has the right to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.". There are limitations to this right in Article 21, Section 3-4: "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are absolutely necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person, whether or not such person participates in such assembly or is a member of such association. Any association the object or activities of which are contrary to the constitutional order is prohibited."
https://www.constituteproject.org/constitution/Cyprus_2013?lang=en +
Article 20, section 1 of the 1992 Czechoslovakia Charter of Fundamental Rights and Freedoms guaranteed freedom of association. Section 3 of that same article described some limitations to this freedom: "The exercise of these rights may be limited only in cases specified by law, if it involves measures that are necessary in a democratic society for the security of the state, the protection of public security and public order, the prevention of crime, or the protection of the rights and freedoms of others."
CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS. https://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Listina_English_version.pdf +
According to Article 28 of the 1964 Constitution of the Democratic Republic of the Congo, citizens have the right to freedom of association. They also have the right to strike, and this entails the responsibility of the government to ensure that "vital public services or services of public interest" continue even during a strike. However, Article 29 forbids police officers, members of the military, and the Gendarmerie from striking and from joining trade unions or other political associations.
References:
1964 Constitution of the Democratic Republic of the Congo: https://en.wikisource.org/wiki/Translation:Constitution_of_the_Democratic_Republic_of_the_Congo_(1964)#Title_II._Fundamental_rights +
According to Article 87 of the Fundamental Law of the Kingdom of Denmark [Revising the Fundamental Law of 1849], 1866: "The citizens shall have the right, without previous authorization, to form associations for any lawful purpose. No association shall be dissolved by an order of the government. However, associations may be forbidden temporarily, but in such cases an action shall immediately be brought for the dissolution of such associations."
References:
Fundamental Law of the Kingdom of Denmark [Revising the Fundamental Law of 1849], 1866: English translation of the Fundamental Law of 1866, revising that of 1849. 279 (1866) VIII: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzdk0009&id=13&men_tab=srchresults +
Article 15 of the 1992 Constitution of the Republic of Djibouti guarantees both freedom of association and the right to strike.
References:
1992 Constitution of the Republic of Djibouti: "Title I: Of the State and Of Sovereignty," Constitution of the Republic of Djibouti, 15 September 1992 : 3-4
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzdj0005&id=3&men_tab=srchresults +
Article 11 of the 1978 Constitution of the Commonwealth of Dominica guarantees freedom of association, including trade union membership.
References:
1978 Constitution of the Commonwealth of Dominica: "Chapter I: Protection of Fundamental Rights and Freedoms," Commonwealth of Dominica Constitution Order, 1978 (1978): 2919-2934: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzdm0004&id=17&men_tab=srchresults +
Article 30 of the 1844 Constitution of the Dominican Republic guarantees freedom of association.
References:
1844 Constitution of the Dominican Republic: Spanish orignal text of the Constitution of 1844 57 (2012) Chapter I: Of Sovereignty
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzdo0015&id=5&men_tab=srchresults +
The first assertion of freedom of association in East Timor comes in its Constitution, ratified on May 20, 2002. The right is found in Part II, Title II, Section 43 (“Constitution of the Democratic Republic of Timor-Leste”, 2002). Section 43 states: "1. Everyone is guaranteed freedom of association provided that the association is not intended to promote violence and is in accordance with the law.
2. No one shall be compelled to join an association or to remain in it against his or her will.
3. The establishment of armed, military or paramilitary associations, including organisations of a racist or xenophobic nature or that promote terrorism, shall be prohibited."
Also relevant to freedom of association is the defense of freedom of assembly in Section 42 of the 2002 East Timor Constitution:
"1. Everyone is guaranteed the freedom to assemble peacefully and unarmed, without a need for prior authorisation.
2. Everyone is recognised the right to demonstrate in accordance with the law."
References:
2002. Constitution of the Democratic Republic of Timor-Leste.
http://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf. +
Elements of freedom of association in Ecuador can be found in the Constitution of 1869, ratified on August 11. The right comes in Title XI, Article 109: "Equatorians have the right to assemble without arms, provided they respect religon, morality, and public order."
Article 24 of the 1897 Constitution of Ecuador was more explicit about freedom of association: "There shall be liberty of meeting and association, without arms, for purposes not prohibited by the laws."
The current Constitution, ratified in 2008, asserts the right in Article 66 (“Ecuador 2008 (rev. 2021) Constitution”, 2021).
References:
1869 Constitution of Ecuador: English translation of the original Constitution of 1869 1244 (2010) Title XI: Of Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0003&id=16&men_tab=srchresults
1897 Constitution of Ecuador: English translation of the original Constitution of 1897 1098 (2010)
Chapter IV: Of Guarantees
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0008&id=4&men_tab=srchresults
2021. “Ecuador 2008 (Rev. 2021) Constitution.” 2021. ConstitutionNet. https://www.constituteproject.org/constitution/Ecuador_2021?lang=en. +
The first known assertion of the right to association in Egypt was in the Royal Decree No. 42 of 1923, which established a Constitutional system of government in monarchical Egypt. The right is established in Part II, Article 21 (“Royal Decree No. 42 of 1923”, 1923).
References:
1923. Royal Decree No. 42 of 1923. https://constitutionnet.org/sites/default/files/1923_-_egyptian_constitution_english_1.pdf. +
Chapter 16, Section 73 of the 1841 Constitution of the State of Salvador discusses a right relevant to freedom of association - freedom of assembly: "Every citizen and inhabitant may freely express, write, and publish his opinion, without being subject to censorship, and with the sole condition of being answerable for the abuse of that liberty before a jury established by the law. In like manner, Salvadoreans may assemble peaceably and orderly to discuss questions of public interest, or to address petitions to the constituted authorities; but the originators of such meetings shall be held responsible for any disturbance which may occur."
The first assertion of the right to association in El Salvador was the Constitution of 1872, ratified November 9th. The right is located in Title III, Article 42 (“Constitución Política de la República de El Salvador de 1872”, 1872).
English translation of the Constitution of 1841. 218 (2010) "Chapter XVI: Declaration of the Rights, Duties, and Securities of the Nation, and of Salvadoreans in Particular," Political Constitution of the State of Salvador (1841): 218-222
“Constitución Política de La República de El Salvador de 1872.” 1872. Biblioteca Virtual Miguel de Cervantes. November 9. https://www.cervantesvirtual.com/obra-visor/constitucion-politica-de-la-republica-de-el-salvador-de-1872/html/04982632-e83f-491a-873b-3bbf5d5fb62f_2.html. +
The first assertion of the right to association in Equatorial Guinea was in their first constitution, ratified on October 12, 1968. The right is established in Chapter 1, Article 3 (“Constitution of Equatorial Guinea (1968)”, 2023).
“Constitution of Equatorial Guinea (1968).” 2023. Wikisource. Wikimedia Foundation, Inc. June 27. https://en.wikisource.org/wiki/Constitution_of_Equatorial_Guinea_(1968). +
The first assertion of the right to freedom of association in Eritrea is in the Constitution ratified on May 23, 1997. The right is located in Chapter 1, Article 19 (“Eritrea 1997 Constitution”, 1997).
“Eritrea 1997 Constitution.” 1997. Constitute. May 23. https://www.constituteproject.org/constitution/Eritrea_1997?lang=en. +
The first assertion of a right to association in Estonia is in the Estonian Declaration of Independence, written on February 23, 1918. The right is asserted as the third of the numbered principles in the Declaration. (“Estonian Declaration of Independence”, 1918)
“Estonian Declaration of Independence.” 1918. Declaration Project. February 23. https://declarationproject.org/?p=1725. +
The Constitution of Eswatini, ratified October 4, 2004, was the first official document to protect association. The right is protected under Chapter III, Article 25 (“Eswatini 2005 Constitution”, 2004).
“Eswatini 2005 Constitution.” 2004. Constitute. October 4. https://www.constituteproject.org/constitution/Swaziland_2005?lang=en. +
The first assertion of the right to association in Ethiopia was in the 1955 revised Constitution, ratified on 24 Tekempt in the Ethiopian Calender, which is November 3rd. The assertion of the right is located in chapter 1, article 47 (“1955 revised constitution of Ethiopia”, 1948).
“1955 Revised Constitution of Ethiopia.” 1948. European Legal Brief. November 3. https://chilot.files.wordpress.com/2011/04/1955-revised-constitution-of-ethiopia1.pdf. +
Freedom of association is protected in the Federated States of Micronesia’s Constitution of 1978. Article IV Section 1 states that: “No law may deny or impair freedom of expression, peaceable assembly, association, or petition” (constituteproject.org).
“Micronesia (Federated States of) 1978 (Rev. 1990) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Micronesia_1990. +
The first assertion of association is in Fiji’s first constitution, going into effect October 10, 1970. The right is found in Chapter II, Article 13 (“Fiji Independence Order 1970 and Constitution of Fiji, 1970).
References:
1970 Constitution of Fiji: https://constitutionnet.org/sites/default/files/1970_constitution.pdf +
The Finnish right to association was first enshrined on July 17th, 1919 in the Constitution Act of Finland. The right is found in Section 10a. (“Constitution Act of Finland”, 1919).
“Constitution Act of Finland.” 1919. Refworld. July 17. https://www.refworld.org/docid/3ae6b53418.html. +
Title I of the French Constitution of 1791 guarantees the right of peaceful assembly.
“Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”
Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).
References:
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262. +
Gabon asserted their right to association first in their 1963 Constitution, ratified May 31. The right is found in Title 1, Article 8 (“CONSTITTUTION DE LA RÉPIJBLIQIJE GABONAISE”, 1963)
“CONSTITTUTION DE LA RÉPIJBLIQIJE GABONAISE.” 1963. Wix.Com. May 31. https://support.wix.com/en/article/wix-editor-staticwixstaticcommedia-appears-in-url-of-wix-images. +
Georgia proclaimed the right to association in the 1995 constitution, ratified on November 6th. The right is located in Chapter II, Article 22 (Georgia 1995 (rev. 2018) Constitution, 1992).
“Georgia 1995 (Rev. 2018) Constitution.” 1992. Constitute. November 6. https://www.constituteproject.org/constitution/Georgia_2018?lang=en. +
Article 7 of the of the "Law Concerning the Basic Rights of the German People," from 27 December 1848, asserted freedom of association.
The right to free association for the German state was later asserted in the 11 August 1919 Constitution of the German Reich (The Weimar Constitution), ratified on August 11, 1919. The right can be found in Chapter II, Section II, Article 124. Article 124 states: "All the Germans have the right to form associations or societies for purposes not contrary to criminal law. This right may not be curtailed by preventive measures. The same provisions apply to religious associations and societies. Every association may become incorporated (Erwerb der Rechtsfähigkeit) according to the provisions of the civil law. The right may not be refused to any association on the grounds that its aims are political, social-politica! or religious."
References:
"IV. Fundamental Rights of the German People voted in by the National Assembly in Frankfurt.," IV. Droits Fondementaux du Peuple Allemand votes par l'Assemblee Nationale de Francfort. (1848): 213: https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzde0172&id=1&collection=cow&index=
The Constitution of the German Reich / August 11, 1919 / Translation of Document 2050-PS / Office of U.S. Chief of Counsel. Courtesy of Cornell University Law Library, Donovan Nuremberg Trials Collection.
https://digital.library.cornell.edu/catalog/nur01840 +
Ghana first asserts their right to freedom of association in their 1979 constitution, ratified on September 24th. The right is found in Chapter Six, Article 29 (“Constitution of the third republic of Ghana”, 1979).
1979. Constitution of the Third Republic of Ghana. September 24. https://constitutionnet.org/sites/default/files/constitution_of_the_third_republic_of_ghana.pdf. +
The Greek Constitution of 1927 established the right to association, being ratified on June 3. The right to association is found in Chapter III, Article 14 (“Constitution of Greece (1927)”, 2022).
“Constitution of Greece (1927).” 2022. Wikisource, the Free Online Library. Wikimedia Foundation, Inc. May 16. https://en.wikisource.org/wiki/Constitution_of_Greece_(1927) +
The first assertion of the right to association in Grenada was in the Constitutional Order of 1973, ratified on October 12th. The right can be found in Chapter I, Article 1, Point B (“Grenada Constitution of 1973”, 1973).
1973. Grenada Constitution of 1973. December 19. https://constitutionnet.org/sites/default/files/Grenada%20Constitution.pdf. +
The first assertion of the right to associate in Guatemala is located in the Constitutive Law of 1879, which was the Constitutive order issued on December 11. The right is found in Title II, Article 25 (“Constitutions 1830-1900 Reform”, 2015).
“Constitutions 1830-1900 Reform.” 2015. Internet Archive: Wayback Machine. May 5. https://web.archive.org/web/20150505003356/http://www.minex.gob.gt/ADMINPORTAL/Data/DOC/20100930181643120Consti1830-1900reform.ydcretos.pdf. +
The first assertion of the right to associate in Guinea was in their 1958 Constitution, ratified on November 10th. The right is asserted in Title X, Section 40 (Maury, “République de Guinée, Constitution du 10 Novembre 1958”, 1958).
Maury, Jean-Pierre. 1958. “République de Guinée, Constitution Du 10 Novembre 1958.” République de Guinée, Constitution Du 10 Novembre 1958, Digithèque MJP. November 10. https://mjp.univ-perp.fr/constit/gn1958.htm. +
The first assertion of the right to association was in the May 11, 1991 amendments to the Guinea-Bisseau Constitution. The right can be found in Title II, Article 44 (“Constitutional Documents Available for the Republic of Guinea-Bissau”, 1991).
1991. Constitutional Documents Available for the Republic of Guinea-Bissau. May 11. https://constitutionnet.org/sites/default/files/Guinea-Bissau%20Constitution.pdf. +
The first assertion of the right to freedom of association in Guyana is in the 1966 Constitution, ratified on May 16th. The right is found in Chapter II, Article 13 (“National Assembly of the Parliament of Guyana”, 1966).
1966. National Assembly of the Parliament of Guyana. May 16. https://parliament.gov.gy/new2/documents/bills/21123/statutory_instrument_guyana_independence_order_1966_no_575.pdf. +
The first assertion of the right to associate in Haiti is in the Constitution of 1843, ratified on December 30th. The right is found in Title III, Article 34 (Maury, “Haiti: Constitution du 30 Décembre 1843”, 1843). The Constitution of 1807 makes mention in Title X, Article 30 that “No association…which intends to disturb the public order shall be tolerated in Haiti”, insinuating a right to association that does not disturb the public order, but it does not outright assert the positive right to associate (“The 1807 Constitution of Haiti”, 1807).
Maury, Jean-Pierre. 1843. “Haiti: Constitution Du 30 Décembre 1843.” Haïti, Constitution de 1843, Digithèque MJP. December 30. https://mjp.univ-perp.fr/constit/ht1843.htm.
“The 1807 Constitution of Haiti.” 1807. Haiti: 1807 Constitution. February 17. https://web.archive.org/web/20060419010800/http://www.webster.edu/~corbetre/haiti/history/earlyhaiti/1807-const.htm. +
The first assertion of the right to associate in Honduras was in their Constitution of 1880. The right is located in Chapter Two, Article 9, Number 5 (“Constitución de Honduras de 1880”, 1880).
“Constitución de Honduras de 1880.” 1880. Biblioteca Virtual Miguel de Cervantes. Biblioteca Virtual Miguel de Cervantes. November 1. https://www.cervantesvirtual.com/obra-visor/constitucion-de-honduras-de-1880/html/44ec3699-d923-4453-8da4-3f3ab7f0fe36_2.html#I_0_. +
The first assertion of the right of association in Hungary is the 1949 Constitution, ratified on August 20. The right is found in Chapter 8, Article 56 (“1949 Hungarian Constitution”, 1949).
1949. 1949 Hungarian Constitution. August 20. https://lapa.princeton.edu/hosteddocs/hungary/1949%20Hungarian%20constitution.pdf. +
The first assertion of the right of association in Iceland is in their 1944 Constitution, ratified on June 17, 1944. The right was asserted in Chapter VII, Article 74 (“Constitution of the Republic of Iceland”, 1944).
1944. Constitution of the Republic of Iceland. June 17. https://www.government.is/library/01-Ministries/Prime-Ministrers-Office/constitution_of_iceland.pdf. +
The following is from Gandhi’s “Liberty of the Press” from 12 January 1922:
“Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it…. The fight for swaraj means a fight for this threefold freedom before all else."
Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton). +
The Indonesian right of association is first asserted in their 1945 Constitution, ratified on August 18. The right was asserted in Chapter XA, Article 28E (“The 1945 constitution of the Republic of Indonesia”, 1945).
1945. The 1945 Constitution of the Republic of Indonesia. August 18. https://jdih.bapeten.go.id/unggah/dokumen/peraturan/116-full.pdf. +
Article 21 of the Supplementary Constitutional Law of 7 October 1907 states the following:"Societies and associations which do not provoke religious or civil strife are free throughout the realm; but their members must be unarmed and must obey the regulations which the law on this subject shall lay down. Meetings in the high roads or public squares must be held in accordance with the laws of the police."
Under Article 26 of the Constitution of the Islamic Republic of Iran (1979), “The formation of parties, societies, political or professional associations, as well as religious societies, whether Islamic or pertaining to one of the recognized religious minorities, is permitted provided they do not violate the principles of independence, freedom, national unity, the criteria of Islam, or the basis of the Islamic Republic. No one may be prevented from participating in the aforementioned groups, or be compelled to participate in them” (constituteproject.org).
References:
Wright, Herbert F. Constitutions of the States at War 1914-1918 . Washington, U.S. Govt. Print. Off.: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/stwar0001&id=499&men_tab=srchresults#
“Iran (Islamic Republic of) 1979 (Rev. 1989) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Iran_1989. +
Article 12 of Iraq’s 1925 Constitution protected freedom of association: “Freedom of expression of opinion, liberty of publication, of meeting together, and of forming and joining associations is guaranteed to all Iraqis within such limits as may be prescribed by law”.
Freedom of association is protected in two different sections of the Iraqi Constitution of 2005. Article 22 Section 3 states that: “The State shall guarantee the right to form and join unions and professional associations, and this shall be regulated by law” while Article 39 Section 1 states that: “The freedom to form and join associations and political parties shall be guaranteed, and this shall be regulated by law” (constituteproject.org).
References:
Iraq 1925 Constitution: https://constitution.org/1-Constitution/cons/iraq/iraqiconst19250321.html
“Iraq 2005 Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Iraq_2005. +
While freedom of association is not explicitly outlined in the Israeli Constitution, the addendum Basic Law: Human Dignity and Liberty of 1992 outlines the fundamental freedoms of life, dignity, and protection afforded to all people (Basic Law: Human Dignity and Liberty, 1992).
"[Basic Law: Human Dignity and Liberty]," [Basic Law: Human Dignity and Liberty] (1992): 150-150 +
Part 1 Title 1 Article 18 of the Italian Constitution ([[Probable year:: 1947]]) states that:
- “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.”
- “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.” +
The 1960 Constitution of the First Republic of the Côte D’Ivoire openly states its adherence to “the principles of Democracy and of the Rights of Man, as they have been identified by the Declaration of the Rights of Man and of the Citizen of 1789…” (World Constitutions Illustrated). But, it makes no explicit reference to the right of free association until the 2016 Constitution of the Third Republic— Article 20 states that “Freedoms of association, assembly and peaceful demonstration are guaranteed by law” (constituteproject.org).
“Côte d’Ivoire 2016 Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Cote_DIvoire_2016.
"Title I: Of the State and of Sovereignty," Constitution of the Republic of Cote d'Ivoire 3 November 1960 (1960): 3-4 +
Freedom of association has been a protected right since the ratification of the first Constitution of 1962. Chapter III Article 13b states that “Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: … freedom of conscience, of expression and of peaceful assembly and association…” (World Constitutions Illustrated).
"Chapter III: Fundamental Rights and Freedoms," Constitution of Jamaica : 812-824 +
Article 29 of the 1889 Japan Constitution stated: "Japanese subjects shall within the limits of the law, enjoy the liberty of speech, writing, publication, public meeting and association."
Article 21 of Japan's 1947 Constitution guaranteed freedom of association as well: "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed."
References:
1889 Japan Constitution: https://constituteproject.org/constitution/Japan_1889
1946 Japan Constitution: https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html +
Part I Article 18 of the Jordanian Constitution provides the first mention of freedom of association in Jordan: “18. All Transjordanians shall have the right to assemble together and to form associations within the provisions of the law” (World Constitutions Illustrated).
"Part I: Rights of the People," Constitution of Transjordan : 980-981 +
Freedom of association is protected in several places in the 1993 Constitution of Kazakhstan, but most directly in Chapter 4 Article 16 which states that “Citizens of the Republic shall have the right to form public associations on the basis of free expression of will and community of interests for the implementation of their rights and freedoms”.
References:
"The Constitution of the Republic of Kazakhstan," International Legal Perspectives 5, no. 1 (1993): 112 +
Freedom of association is protected in Kenya’s first Constitution, which was ratified in 1963. Chapter II Article 14b states that “Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: …freedom of conscience, of expression and of assembly and association…”. This is further elaborated in Article 24(1): "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests."
Article 24(2) of the 1963 Constitution articulated the grounds for potential exception, or considerations relevant to conflict among rights and/or laws relevant to freedom of association:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
(c) that imposes restrictions upon public officers,
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
The language found in Articles 14(b) and 24(1) of the 1963 Constitutions is repeated exactly in Articles 70 and 80(1) of the the 1969 Constitution. The language from 24(2) of the 1963 Constitution is also repeated in Article 80(2) of the 1969 Constitution, but further points are added to Article 80(2) of the 1969 Constitution.
References:
1963 Constitution of Kenya: http://kenyalaw.org/kl/fileadmin/pdfdownloads/1963_Constitution.pdf
1969 Constitution of Kenya: https://repository.kippra.or.ke/bitstream/handle/123456789/2324/THE%20CONSTITUTION%20OF%20KENYA%20ACT%201969%20No%205.%20of%201969.pdf?sequence=1
Freedom of association is protected under Article 8: “The right of association shall be recognized. This right may be restricted by Act of Parliament in the interest of public order” (constituteproject.org).
“Netherlands 1814 (Rev. 2008) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Netherlands_2008. +
Kiribati conditionally protects freedom of association under Chapter II Section 13.1-2 in their 1979 Constitution: “1. Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association… 2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—(a) in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the rights or freedoms of other persons; or (c) that imposes restrictions upon public employees…” (constituteproject.org).
“Kiribati 1979 (Rev. 2013) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Kiribati_2013. +
- The first Constitution of Kuwait was ratified in 1962 and reinstated in 1992. Freedom of association is protected in Part III Article 43 which provides that “The liberty of forming societies and unions on a national basis and by peaceful means is guaranteed in conformity with the conditions and the stipulations specified by Law; and no person shall be constrained to join any society or union” (constituteproject.org).
“Kuwait 1962 (Reinst. 1992) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Kuwait_1992. +
According to Article 8.1 of the 1993 Constitution of the Kyrgyz Republic as amended in February 1996, "Political parties, trade unions and other public associations may be organized in the Kyrgyz Republic on the bases of free will and unity or
interests. The State shall guarantee the rights and lawful interests of public associations."
References:
1993 Constitution of the Kyrgyz Republic as amended in February 1996: http://hrlibrary.umn.edu/research/kyrgyzrepublic-constitution.html +
- The first Constitution of the Lao People’s Democratic Republic protects freedom of association in the preamble which states that “Laos recognizes these as fundamental rights of Laotians: individual freedom, freedom of conscience, freedom of property, freedom to speak, write and publish, freedom to teach, freedom of assembly and association, freedom of profession, equality before the law, security of livelihood” (World Constitutions Illustrated).
“Constitution of Laos 11th May, 1947.” World Constitutions Illustrated, n.d. https://heinonline-org.uc.idm.oclc.org/HOL/Page?handle=hein.cow/bfsprs0149&id=1&collection=cow&index=#. +
Legal protection of freedom of association was not added to the Latvian Constitution until 1998, 78 years after its original ratification (constituteproject.org). In this version, Article 102 states that “Everyone has the right to join associations, political parties and other public organisations” (constituteproject.org).
“Latvia 1922 (Reinst. 1991, Rev. 2016) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Latvia_2016. +
- Freedom of association is protected under Chapter 1 Article 13 of the 1926 Lebanese Constitution which states: “The freedom of opinion, expression through speech and writing, the freedom of the press, the freedom of assembly, and the freedom of association, are all guaranteed within the scope of the law” (constituteproject.org).
“Lebanon 1926 (Rev. 2004) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Lebanon_2004. +
The first Constitution of Lesotho, ratified in 1966, conditionally protects freedom of association in Chapter II Article 15.1-2c: “(1) Every person shall be entitled to, and (except with his own assembly and consent) shall not be hindered in his enjoyment of freedom of association that is to say, freedom to assemble and associate with other persons and in particular to form or belong to trade unions and other associations for the protection of his interests. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision— (a) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons; or (c) for the purpose of imposing restrictions upon public officers” (World Constitutions Illustrated). This Constitution was suspended in 1970, but it is today protected under Article 13 of the 1993 constitution (constituteproject.org).
References:
“Lesotho - Africa.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/countries/Africa/Lesotho.
“Lesotho Independence Order, 1966.” HeinOnline World Constitutions Illustrated. Accessed July 19, 2023. https://heinonline-org.uc.idm.oclc.org/HOL/COWShow?collection=cow&cow_id=234. +
The Liberia Constitution of 1825 was written by the American Colonization Society. Article I states that “ALL persons born within the limits of the territory held by the American Colonization Society, in Liberia, in Africa, or removing there to reside, shall be free, and entitled to all such rights and privileges, as are enjoyed by the citizens of the United States” while Article VI further establishes that “The common law, as in force and modified in the United States, and applicable to the situation of the people, shall be in force in the Settlement” (World Constitutions Illustrated).
Article 17 of the 1984 Liberia Constitution states: "All persons, at all times, in an orderly and peaceable manner, shall have the right to assemble and consult upon the common good, to instruct their representatives, to petition the Government or other functionaries for the redress of grievances and to associate fully with others or refuse to associate in political parties, trade unions and other organizations."
1984 Constitution of Liberia: "Schedule," Constitution of the Republic of Liberia
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzlr0001&id=4&men_tab=srchresults
"Constitution for the Government of the African Colony at Liberia," Constitution for the Government of the African Colony at Liberia; Plan for the Civil Government of Liberia; Digest of the Laws now in force in the Colony of Liberia, August 19th, 1824 (1825): 5-6 +
Freedom of association is protected under Article 26 of the 1951 Libyan Constitution: “Freedom of peaceful association shall be guaranteed, and the exercise thereof shall be regulated by law. Secret societies and associations that aim to achieve political goals through organizations of a military character are prohibited” (World Constitutions Illustrated).
"Constitution of the Kingdom of Libya of 1951," [Constitution of the Kingdom of Libya of 1951] (1951): 1-26 +
- The Constitution of 1848 of Liechtenstein guarantees freedom of association in Part III Section 51: “The Constitution guarantees the free right of association for peaceful discussions of state and community affairs, which everyone is free to attend” (World Constitutions Illustrated).
"Part III: The People and Their Rights," Entwurf: Einer Verfassung fur das Furstenthum Liechtenstein vom 1. Oktober 1848 (1848): 6-8 +
- Lithuania’s 1992 Constitution protects freedom of association under Chapter II Article 35 which states that: “Citizens shall be guaranteed the right to freely form societies, political parties and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws. No one may be compelled to belong to any society, political party, or association” (constituteproject.org).
“Lithuania 1992 (Rev. 2019) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Lithuania_2019. +
Chapter I Article 26 of the 1868 Constitution of Luxembourg states that: “The Constitution guarantees the right of association, in compliance with the laws that govern the exercise of this right without having to be submitted to a prior authorization” (constituteproject.org).
“Luxembourg 1868 (Rev. 2009) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Luxembourg_2009. +
The 1992 Constitution of Madagascar was a democratic document that gave citizens the right to freedom of association. Article 10 of the Constitution states that freedom of association, among other rights, is guaranteed to all and may only be limited in the circumstances outlined (“Madagascar: Constitution”).
“Madagascar: Constitution” 1992. Refworld
https://www.refworld.org/docid/3ae6b5a98.html +
The 1964 Malawi Constitution guaranteed freedom of association in Article 11(b) and in Article 21(1). According to Article 21(1): "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests."
Adopted on May 16, 1994, the Constitution of Malawi asserts the right to freedom of association to all citizens in the country’s legal code. Article 32 states that “[e]very person shall have the right to freedom of association, which shall include the freedom to form associations” and “[n]o person maybe be compelled to belong to an association” (Malawi 1994, 16).
References:
1964 Malawi Constitution: http://citizenshiprightsafrica.org/wp-content/uploads/2022/03/Malawi-Constitution-1964.pdf
Malawi. "Malawi's Constitution of 1994 with Amendments through 1999." Constitute Project. 1994.
https://faolex.fao.org/docs/pdf/mlw136089.pdf. +
The 1957 Federal Constitution of Malaysia is the first piece of legal documentation that assured the right to freedom of association in Malaysia after it gained complete independence from British rule. The document declares that “all citizens have the right to form associations” in Section 1C of article 10 concerning the right to freedom of speech, assembly, and association (Malaysia 1957). Article 10, Section 2C states that " "Parliament may by law impose ... on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality." Article 10 Section 3 states: "Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education."
References:
1957 Malaysia Constitution: http://www.commonlii.org/my/legis/const/1957/2.html +
The first Constitution of the Maldives, created in 1932, protected several civil and political rights, including the freedom to join or form associations and societies in Article 17. The Constitution proved to be short lived, being quite unpopular, and was amended in 1934 and later completely replaced in 1942. The Maldives eventually transitioned from a monarchy to a republic, and the current constitution provides greater protection of the right (Nazeer 2022, 125). Article 16 of the 1969 Constitution of the Republic of Maldives As Amended to 1975 states: "There shall be freedom to form societies and associations as long as they do not contravene provisions specifically laid down in the law."
References:
Nazeer, Ahmed. "The Maldives: From Dictatorship to Constitutional Democracy and the Quest for Consolidation ." University of Portsmouth, 2022.
1969 Constitution of the Republic of Maldives As Amended to 1975: Peaslee Amos J.; Xydis, Dorothy Peaslee. Constitutions of Nation. The Hague, Martinus Nijhoff.: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/ctituson0002&id=723# +
Mali:
Mali’s 1974 Constitution protects the right of its citizens to form unions and associations to protect their professional interests under Article 13 (“Journal Officiel De La République Du Mali” 1974, 2). The freedom to form all associations is found in Mali’s current 1992 constitution under Article 5 (Mali 1992).
“Journal Officiel De La République Du Mali” 1974. https://sgg-mali.ml/JO/1974/mali-jo-1974-440.pdf
Mali 1992. “Mali 1992 Constitution” Constitute
https://www.constituteproject.org/constitution/Mali_1992 +
Achieving its independence as the State of Malta in September of 1964, the country adopted a constitution that included a provision guaranteeing its citizens the right to freedom of association. Article 32 of Chapter IV of the 1964 constitution states that every person in Malta is entitled to the freedom of “peaceful assembly and association” (Mali 1964).
Mali. “Mali 1964 (rev. 2016) Constitution.” Constitute 1964
https://www.constituteproject.org/constitution/Malta_2016 +
Written before they gained formal independence in 1986, the 1979 Constitution of the Marshall Islands ensures freedom of association to every person. The right to freedom of association is included in the Bill or Rights found under Section 1 of Article II of the Constitution (Marshall Islands 1979)
Marshall Islands. “Marshall Islands 1979 (rev. 1995) Constitution.” Constitute 1979
https://www.constituteproject.org/constitution/Marshall_Islands_1995 +
The country’s 1964 Law of Associations acknowledges the existence of associations within Mauritania’s legal code, though it requires them to be registered and authorized by the government. It “gives the Ministry of Interior far-reaching powers to refuse such permission on vague grounds” (MENA Rights Groups 2021). Mauritania’s original constitution, adopted in 1961, affirmed the country’s commitment to the Declaration of the Rights of Man and of the Citizen (1789) which discusses political associations, but does not explicitly state its commitment to the right (Mauritanie 1961).
Mauritanie. “Constitution du 20 mai 1961” Digithéque MJP 1961
https://mjp.univ-perp.fr/constit/mr1961.htm
MENA Rights Groups. “Mauritania’s human rights record examined by UN Member States” MENA Rights
2021 https://menarights.org/en/articles/mauritanias-human-rights-record-examined-un-member- +
The Constitution of Mauritius, adopted in 1968 after the country’s independence, protects the right to association. This provision is found in section 3 “Fundamental rights and freedoms of an individual” under Chapter II of the Constitution. (Mauritius 1968)
Mauritius. “Mauritius 1968 (rev. 2016) Constitution” Constitute 1968
https://www.constituteproject.org/constitution/Mauritius_2016 +
The Federal Constitution of the United Mexican States, put in place after the end of the dictatorship of Antonio López de Santa Anna in 1857, greatly expanded human rights in the country. Though it does not explicitly mention association, it refers to related rights. Section 1, Article 9 states, “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country” (“Federal Constitution of the United Mexican States of 1857.” 2023).
“Federal Constitution of the United Mexican States of 1857.” 2023. Federal Constitution of the United Mexican States of 1857, World History Commons. Accessed July 14. https://worldhistorycommons.org/federal-constitution-united-mexican-states-1857. +
After its independence from the Soviet Union, Moldova ratified its constitution in 1994 and protected the right to freedom of association. Article 41 of the constitution states that all citizens “shall be free to associate in parties and other socio-political organizations” and outlines the freedom’s restrictions. (Moldova 1994).
Moldova. “Moldova (Republic of) 1994 (rev. 2016)” Constitute 1994
https://www.constituteproject.org/constitution/Moldova_2016 +
Monaco’s constitution, first adopted in 1911 and then heavily revised in 1962, protects the right to freedom of association in the country. Article 30 states that freedom of association is guaranteed by law, though subject to regulation of law (Monaco 1911).
Monaco. “Constitution of the Principality of Monaco” Council of Europe 1911
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e +
Chapter 1, Article 3(i) of the 1924 Constitution of the Mongolian People's Republic states: " With a view to securing for the labouring masses of the people freedom of association, the Mongolian People's Republic affords material and moral assistance to the poorest of the working masses (arats and artisans) for union and organisation."
The right to freedom of association in Mongolia can also be found in the 1940 Constitution of the Mongolian People’s Republic. Article 82 grants citizens the right to “unite in public organizations,” which includes trade unions, cooperative associations, youth organizations, sports and defense organizations, cultural, technical, and scientific societies (Anon 19948. 199). The modren Mongolian state also protects freedom of association in its 1992 Constitution in Article 10 (Mongolia 1992).
References:
1924 Constitution of the Mongolian People's Republic: British and Foreign State Papers (1931) https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0134&id=1244&men_tab=srchresults
Anon. Far Eastern Section, “Constitution of the Mongol People's Republic”, 23 Wash. L. Rev. & St. B.J.
181 (1948).
Mongolia. “Mongolia 1992 (rev. 2001)” Constitute 1992
https://www.constituteproject.org/constitution/Mongolia_2001 +
According to Article 212 of the 1905 Montenegro Constitution: "Citizens have the right to assemble in peace according
to the law." Article 213 of the 1905 Constitution augments this point: "Citizens have the right of assembly when it concerns objects which are not contrary to the laws."
After Montenegro’s formal independence and separation from its union with Serbia in 2006, the country adopted a constitution the following year that included an article on freedom of association. The right is granted to all Montenegro citizens in Article 53 (Montenegro 2007). Montenegro’s earlier constitution, adopted after the breakup of Yugoslavia in 1992, includes a provision promoting freedom of association in Article 40 (“Constitution of the Republic of Montenegro” 1992)
1905 Montenegro Constitution: English translation from the French text of the original Constitution of 1905 "Part 14: The Constitutional Rights of Montenegrin Citizens," Constitution of 6/19 December 1905. (1905): 426-427: https://heinonline-org.mutex.gmu.edu/HOL/Page?handle=hein.cow/zzmb0013&id=20&collection=cow&index=
“Constitution of the Republic of Montenegro” 1992: https://www.venice.coe.int/webforms/documents/?pdf=CDL(2005)096-e
Montenegro. “Montenegro 2007” Constitute 2007: https://www.constituteproject.org/constitution/Montenegro_2007 +
The earliest assertion of the rights to freedom of association in Morocco is found in a 1958 decree, dhahir 1-58-376. The law gives citizens the right to form associations, with Article 5 setting “forth the procedure for declaring an association and maintaining its declared status” (Human Rights Watch 2009, 7).
Human Rights Watch. 2009 “Morocco: Freedom to Create Associations”
https://www.hrw.org/reports/morocco1009webwcover.pdf +
After its independence from Portugal in 1975, the People’s Republic of Mozambique established a socialist state with a constitution that protected freedom of association in its first constitution under Article 27 (Mozambique 1990. 9). In 1990 a new constitution was put into place that reformed the country into its present form, with Article 34 ensuring freedom of association to all (“Constitution of the People’s Republic of Mozambique” 17)
“The Constitution of the People’s Republic of Mozambique.” 2023. Mozambique History.
https://mozambiquehistory.net/justice/constitution/19800000_english_constitution.pdf.
Mozambique “Constitution of Mozambique” 1990 +
Myanmar’s first constitution, created and adopted in 1947 after its independence, contains the earliest provision protecting the right to freedom of association in the country. Found in Section iii of Article 17, it allows citizens to form and join associations, as long as their goal is not to undermine the Constitution (“The Constitution of the Union of Burma” 1948, 3).
“The Constitution of the Union of Burma” 1948 Myanmar Law Library
http://www.myanmar-law-library.org/law-library/laws-and-regulations/constitutions/1947 +
Adopted in 1990, shortly before Namibia’s independence from South Africa, The Constitution of the Republic of Namibia contains the first assertion of the right to freedom of association in the country’s legal code. Provision e of Article 21 guarantees the right to join and form associations, including political parties and trade unions (Namibia 1990).
Namibia. 1990 “Namibia 1990 (rev. 2014)” Constitute
https://www.constituteproject.org/constitution/Namibia_2014 +
Nauru’s Constitution of 1968 explicitly mentions the right to freedom of association in its preamble, as well as in Section 1, 2, and 3 of Article 13. Written shortly after national independence, it is the earliest assertion of this right in the country (Nauru 1968)
Nauru. 1968 “Nauru’s Constitution of 1968” Constitute
https://www.constituteproject.org/constitution/Nauru_1968.pdf?lang=en +
The Nepal Interim Government Act of 1951, put into effect after the Revolution of 1951, proclaims that all citizens have the right to form associations and unions. This is found under Section c of Article 17: Fundamental principles of law (Nepal 1951, 3)
Nepal. 1951 “The Interim Government of Nepal Act, 1951” Constitutionnet
https://constitutionnet.org/sites/default/files/1951%20Constitution%20English.pdf +
Part 2 Section 17 of the Bill of Rights Act ([[Probable year:: 1990]]) states that, “Everyone has the right to freedom of association.”
Although New Zealand does not have a codified constitution, the first explicit mention of freedom of association in New Zealand law is the Bill of Rights Act of 1990, Article 17 of which states that “everyone has the right to freedom of association.” The country had earlier promised to uphold freedom of association by its 1978 ratification of the International Covenant on Civil and Political Rights, which protects this right in Article 22.
“International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#:~:text=Article%2019,-1.&text=Everyone%20shall%20have%20the%20right,other%20media%20of%20his%20choice.
New Zealand Legislation. “New Zealand Bill of Rights Act 1990.” Parliamentary Counsel Office, July 24, 2023, https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html.
UN Treaty Body Database. “Ratification Status for CCPR – International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en. +
The first mention of freedom of association in Nicaraguan law is found in the 1838 Political Constitution of the Sovereign, Free, and Independent State of Nicaragua, promulgated shortly after the country’s final independence. In Article 14, the constitution states that “popular gatherings that have as [their] object any honest pleasure, the discussion concerning politics, or to examine the public conduct of the [state] functionaries” cannot be impeded.
“Political Constitution of the Sovereign, Free, and Independent State of Nicaragua.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzni0040&collection=cow. +
Freedom of association is found in the first Constitution of Niger, enacted in 1960 shortly after independence. Under Article 7, “political parties and groups shall be instrumental in the expression of the suffrage. They shall be formed and shall carry on their activities freely on condition that they respect the principles of national sovereignty and democracy and the laws of the Republic.”
“Constitution of Niger.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzne0002&id=1&men_tab=srchresults. +
Chapter IV Section 37 of the constitution of the Second Republic ([[Probable year:: 1979]]) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”
Freedom of association is enumerated in the first constitution of independent Nigeria, enacted in 1960. Under Article 25, “every person shall be entitled to … associate with other persons and in particular he may form or belong to trade unions and other associations for the protection of his interests.” The article subsequently lays out broad reservations on this article, precluding its application to laws “reasonably justifiable in a democratic society” that are in the interest of “defense, public safety, public order, public morality, or public health,” as well as those “for the purpose of protecting the rights and freedoms of other persons.”
“The Constitution of the Federation of Nigeria.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzng0011&id=1&men_tab=srchresults. +
The Constitution of the Democratic People’s Republic of Korea, adopted in 1948, purports to grant freedom of association to its citizens. Under Article 13, citizens have the freedom of “assembly, and freedom to form associations, or participate in public demonstrations.” The article specifically says that “every citizen shall have the freedom of organizing and joining democratic political parties, trade unions, cooperative associations, and physical culture, cultural, technical, and scientific organizations.”
Central Intelligence Agency. “Constitution of the Democratic People’s Republic of Korea.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzkp0005&collection=cow. +
Freedom of association is enumerated in the constitution of the Republic of North Macedonia, passed in 1991 shortly after independence from Yugoslavia (when the country was called the Republic of Macedonia). Under Article 20, “citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions.” Citizens may “freely establish associations of citizens and political parties, join them, or resign from them.” Earlier, the 1946 Constitution of the Federal People’s Republic of Yugoslavia, of which North Macedonia was a constituent republic as the People’s Republic of Macedonia, protected freedom of association in Articles 20 and 27.
“Constitution of the Federal People’s Republic of Yugoslavia.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/cyugo0001&id=11&men_tab=srchresults.
“Constitution of the Republic of Macedonia.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzmk0010&id=10&men_tab=srchresults. +
The Constitution of Norway, which was initially enacted in 1814 (making it the world’s second oldest constitution to still be in effect today, after the United States Constitution), was amended around 2014 to guarantee the right to freedom of association. Under Article 101, “everyone has the right to form, join, and leave associations, including trade unions and political parties.” Before this, Norway pledged to uphold freedom of association when it ratified the International Covenant on Civil and Political Rights in 1972.
“The Constitution, as laid down on 17 May 1814 by the Constituent Assembly at Eidsvoll and subsequently amended, most recently in May 2014.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzno0023&id=1&collection=cow&index=.
UN Treaty Body Database. “Ratification Status for CCPR – International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en. +
Limited freedom of association is protected under the Basic Statute of the State, instituted in 1996, which effectively functions as a constitution for Oman. Under Article 33, “the freedom of forming societies on a national basis and for legitimate objectives and by peaceful means – provided that it is not in conflict with the provisions and objectives of this Basic Statute – is guaranteed in accordance with the terms and conditions stipulated by the [Statute].” Further, “it is prohibited to form societies the activities of which are adverse to the order of society, secret or of a military nature.”
“The Basic Statute of the State.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzom0002&id=1&collection=cow&index=. +
The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution ([[Probable year:: 1973]]) .
“Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”
“Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”
A limited form of freedom of association is provided by the Constitution of the Islamic Republic of Pakistan, enacted shortly after Pakistan became a republic in 1956. Under Article 10, “every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.”
“Constitution of the Islamic Republic of Pakistan.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpk0008&collection=cow. +
Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”
“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=. +
Freedom of association is protected under the first constitution of Panama, enacted in 1904 shortly after the country’s independence. Article 20 guarantees Panamanians’ right to “to form associations for all the legitimate purposes of life.”
Comparative Constitutions Project. “Constitution of the Republic of Panama.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzpa0048&id=1&men_tab=srchresults. +
Papua New Guinea makes provision for freedom of association in its constitution, enacted upon independence in 1975. Under Section 47, every individual has the right to freely associate with “political parties, industrial organizations, or other associations.” This right, however, is listed under the heading of “qualified rights,” so that its application is subjected to several qualifications laid out in Section 38.
“Constitution of the Independent State of Papua New Guinea.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/COWShow?collection=cow&cow_id=322. +
Freedom of association is recognized in Paraguayan law in the 1870 constitution. Under Article 18, Paraguayans have the right to “associate with each other for useful purposes,” though “subject to the proper rules and regulations.”
Comparative Constitutions Project. “Constitution of the Republic of Paraguay.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzpy0009&id=2&men_tab=srchresults. +
Peru protects freedom of association in the Political Constitution of the Republic of Peru, promulgated in 1856. According to Article XXVIII, “all citizens possess the right of meeting together peaceably, whether in public or in private, provided public order be not compromised.”
British and Foreign State Papers (1856-1857). “Political Constitution of the Republic of Peru – Lima, October 13, 1856.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0047&id=1171. +
The constitution of the First Philippine Republic, also known as the Malolos Constitution and passed in 1899 during the struggle for independence from Spain, represents the first mention of freedom of association in Philippine law. Under Article 20, no Filipino may be deprived of the “right of association for purposes of human life and which are not contrary to public morals.”
The LawPhil Project. “1899 Constitution of the Republic of the Philippines (Malolos Convention).” Arellano Law Foundation, July 24, 2023, https://lawphil.net/consti/consmalo.html. +
Freedom of association was initially protected in the 1921 constitution, passed following the establishment of the first modern Polish state in the aftermath of World War I. Article 108 says that citizens have “the right of meeting and of association, as well as that of founding societies and unions;” it then says that “the application of these rights is regulated by law.”
“The Constitution of the Polish Republic.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpl0051&collection=cow. +
Article 46 of the Portugese Constitution ([[Probable year:: 1976]]) :
“Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.”
“Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”
“No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”
“Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”
Portugal first protected freedom of association in the Constitution of the Portuguese Monarchy, promulgated in 1838. Under Article XIV, “all citizens have the right of assembling together conformably to the laws.” The article subsequently lays out specifications for how it is to be applied, and concludes with “a special law shall regulate, in other respects, the exercise of this right.”
British and Foreign State Papers (1838-1839). “Constitution of the Portuguese Monarchy – Promulgated at Lisbon, April 4, 1838.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0027&id=775&men_tab=srchresults. +
The first mention of freedom of association in Qatar’s laws is found in the Permanent Constitution of the State of Qatar, promulgated in 2004. Article 45 says that “the right of citizens to establish association is guaranteed in accordance with the conditions and circumstances set forth in the law.”
Qatar Ministry of Foreign Affairs. “Permanent Constitution of the State of Qatar.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzqa0002&id=2&men_tab=srchresults. +
Freedom of association is conditionally protected “personal liberty” under Article 40, Section 6, Subsection 1.iii of the 1937 Irish Constitution which states that “The right of the citizens to form associations and unions [is a guaranteed liberty]. Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right” (constituteproject.org).
“Ireland 1937 (Rev. 2019) Constitution.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Ireland_2019. +
According to Article 10 of the 1963 Constitution of the Republic of the Congo, "Freedom of association is guaranteed to all under the conditions established by law. Meetings or groups whose purpose or activity would be illegal or contrary to public order shall be prohibited."
1963 Constitution of the Republic of the Congo: English translation of the French original text of the Constitution of Constitution of the Republic of the Congo (Brazzaville), December 8, 1963. 87 (2016) Title II: Public Liberties and Liberties of the Human Person: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzcg0022&id=2&men_tab=srchresults +
Romania protects freedom of association in its first constitution, adopted in 1866. Under Article 27, “Romanians have the right to associate, [in accordance with] the laws that regulate the exercise of this right.”
“Constitutiunea Romaniei din 1866.” Constitutia Romaniei, July 24, 2023, https://www.constitutia.ro/const1866.htm. +
Possibly the first mention of freedom of association in the law of the Russian state is in the October Manifesto, issued by Tsar Nicholas II in response to the mass unrest of the Revolution of 1905. The Manifesto pledged to guarantee to all Russian citizens “the essential foundations of civil freedom, based on the principles of genuine inviolability of the person, freedom of conscience, speech, assembly, and association.”
“Manifesto of October 17, 1905.” Seton Hall University, July 24, 2023, https://academic.shu.edu/russianhistory/index.php/Manifesto_of_October_17th,_1905#:~:text=The%20disturbances%20that%20have%20taken,is%20dangerous%20to%20Our%20state. +
Rwanda provides for freedom of association in its 1962 constitution, promulgated shortly after independence. Under Article 19, “all citizens have the right to freely form associations or societies, subject to… the formalities [laid down by] laws and regulations.”
Nouvelles Constitutions Africaines. “Constitution de la Republique Rwandaise.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/noucoaf0001&collection=cow&index=alpha/N_cowbooks&id=15. +
Chapter 2 Article 13 specifies the protection of freedom of assembly and association. Saint Kitts and Nevis became fully independent from Britain in 1983. The constitution was adopted the same year. Also in this section are the conditions under which limitations of this freedom may be imposed.
The Government of St. Kitts and Nevis. “The Constitution of Saint Christopher and Nevis. 2023. https://www.gov.kn/the-constitution/ +
Chapter 1 Article 11 of the Constitution of Saint Lucia regards freedom of association and assembly. Saint Lucia became independent from the British Commonwealth in February 1979, however, the Constitution was drafted in 1978, then coming into operation on the day of independence.
Georgetown University. “Saint Lucia Constitutional Order 1978” https://pdba.georgetown.edu/Constitutions/Lucia/Luc78.html
Saint Lucia “let her inspire you.” History and culture. https://www.stlucia.org/en/discover-saint-lucia/history-culture/ +
Chapter 1 Article 11 specifies the protection of freedom of assembly and association. Autonomy was granted in 1969 and the first draft of the constitution was written. When complete independence was gained in 1979, The constitution was revised and adopted.
Constitution of Saint Vincent and the Grenadines 1979. Organization of American States. http://www.oas.org/es/sla/dlc/mesicic/docs/mesicic4_svg_const.pdf
CIA World Factbook. Saint Vincent and The Grenadines. https://www.cia.gov/the-world-factbook/countries/saint-vincent-and-the-grenadines/ +
Part 2 Section 13 of the Constitution lists the rights regarding freedom of speech, assembly, association, movement and residence. The Constitution was first drafted in 1954, in a constitutional convention with New Zealand. The Final draft was approved in 1962, The year of independence.
Britannica. Samoa https://www.britannica.com/place/Samoa-island-nation-Pacific-Ocean/History
CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA. International Labour Organization. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/44021/124322/F-82949215/WSM44021.pdf +
Article 6 of The Declaration of Citizens' Rights and of the fundamental principles of the San Marinese legal order specifies Freedom of Association. The Constitution of San Marino, from 1600, does not specify the individual rights so the Declaration of Citizen’s Rights and fundamental principles of San Marino was adopted on July 8,1974.
Declaration of Citizens Rights and Fundamental Principles of San Marino. Rights of Assembly. https://www.rightofassembly.info/assets/downloads/1974_Constitution_of_San_Marino.pdf
CIA World Factbook. San Marino. https://www.cia.gov/the-world-factbook/countries/san-marino/ +
Saudi Arabia is an absolute monarchy with heavy restriction of civil liberties. According to the US State Department, as of 2022, Saudi Arabia’s law “provides for limited freedom of assembly and association, but the government did not respect these rights.”
“2022 Country Reports on Human Rights Practices: Saudi Arabia. U.S. Department of State. https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/saudi-arabia/
CIA World Factbook. Saudi Arabia. https://www.cia.gov/the-world-factbook/countries/saudi-arabia/#government
Constitution of Saudi Arabia. University of Minnesota. http://hrlibrary.umn.edu/research/saudiarabia/saudi-constitution.html
Freedom House. World Freedom Report. Saudi Arabia https://freedomhouse.org/country/saudi-arabia/freedom-world/2022 +
Title II article 8 covers freedom of association along with, opinion, expression, press, assembly, movement, and manifestation in the Constitution of the Republic of Senegal. Independence was gained from France in 1960, The constitution was adopted in 1963, most recently promulgated in 2001.
CIA World Factbook. Senegal https://www.cia.gov/the-world-factbook/countries/senegal/#government
Constitution of the republic of Senegal. Translated. https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/sn/sn014en.pdf +
Serbia became independent in 2006 from the state union of Serbia and Montenegro. The 2006 constitution covers freedom of association under article 55 of the Constitution of the Republic of Serbia. However, The 1931 Constitution of the Kingdom of Yugoslavia covers freedom of association in Chapter II, Article 13.
International Labour Organization. Constitution of the Republic of Serbia. 2006. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/74694/119555/F838981147/SRB74694%20Eng.pdf
Constitution of the Kingdom of Yugoslavia. 1931. https://royalfamily.org/wp-content/uploads/2014/01/constitution.pdf +
Chapter III article 22 of The Constitution of Seychelles (1976) covers freedom of association along with freedom of assembly. Seychelles gained independence from the United Kingdom in the same year of 1976. The constitution was redrafted in 1993, now covering the freedom of association under Article 23 of Chapter III.
CIA World Factbook. Seychelles. https://www.cia.gov/the-world-factbook/countries/seychelles/#government
Seychelles Independence Order 1976. Constitution of Seychelles 1976. http://citizenshiprightsafrica.org/wp-content/uploads/2020/02/Seychelles-Independence-Constitution-1976.pdf
Constitute Project. Constitution of Seychelles 1993. https://www.constituteproject.org/constitution/Seychelles_2017 +
The 1991 Constitution of Sierra Leone covers freedom of association in chapter III Article 15.A.
THE CONSTITUTION OF SIERRA LEONE. International Labour Organization. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/26723/90483/F311875481/SLE26723.pdf
Constitutional History of Sierra Leone. Constitution Net. https://constitutionnet.org/country/sierra-leone +
Freedom of Association is mentioned in Article 14.1.C. of the Constitution of Singapore 1965. Singapore gained independence in 1965 From the Malaysian Federation, and the Constitution was revised from the 1963 Constitution of the State of Singapore. It states that restictions may be imposed by any law relating to labour or education.
Constitution of the Republic of Singapore. 1965. Singapore Statutes Online. https://sso.agc.gov.sg/Act/CONS1963?ProvIds=P14-#pr14-
CIA World Factbook. Singapore https://www.cia.gov/the-world-factbook/countries/singapore/#government
Constitution of the State of Singapore. 1963. https://media.bloomsburyprofessional.com/rep/files/singapore-constitution-1963.pdf +
Of the 1920 Constitution of Czechoslovakia, Section V article 113 covers freedom of association. Slovakia and The Czech Republic became independent states in 1993 and the independent constitution came into force October 1, 1992. Freedom of Association is covered in Section 3, Article 29, as a Political right rather than a Fundamental Human Right or Freedom, which is covered by section 2.
CONSTITUTION OF THE SLOVAK REPUBLIC. https://www.prezident.sk/upload-files/46422.pdf
University of California Press. New York Times Current History. The Constitution of Czechoslovakia: Full Text of the Most Modern and Complete Instrument of Democratic Self-Government. https://www.jstor.org/stable/pdf/45325393.pdf?refreqid=excelsior%3A4f1bbc1d288238311128e70a46ae2b12&ab_segments=&origin=&initiator=&acceptTC=1
CIA World Factbook. Slovakia. https://www.cia.gov/the-world-factbook/countries/slovakia/#government +
The 1931 Constitution of the Kingdom of Yugoslavia asserts the right to form associations under Chapter II, Article 13. Slovenia gained independence in 1991, The 1991 Constitution of the Republic of Slovenia covers freedom of association in Chapter II, Article 42.
Constitute Project. Republic of Slovenia 1991. https://www.constituteproject.org/constitution/Slovenia_2013.pdf
The Constitution of the Kingdom of Yugoslavia. 1931.https://royalfamily.org/wp-content/uploads/2014/01/constitution.pdf +
Chapter 2 Article 13 Of the Constitution of the Solomon Islands covers the protection of freedom of association and assembly. The Constitution was adopted 31 of may, 1978 and effective July 7, 1978, when The country gained independence from the United Kingdom.
CIA World Factbook. Solomon Islands.https://www.cia.gov/the-world-factbook/countries/solomon-islands/#government
Constitute Project. Constitution of the Solomon Islands. https://www.constituteproject.org/constitution/Solomon_Islands_2018 +
Part II, Article 12, of the 1960 Constitution of the Somali Republic covers the right to political association. Article 12 Section 2 states, Political parties and associations which are secret, have an organization of a military character or have a tribal denomination shall be prohibited. Article 13 separately covers the right to form trade unions. The Somali Republic was formed July 1, 1960, gaining independence from the United Kingdom(Somalia), and Italy(Somoliland).
CIA World Factbook. Somalia. https://www.cia.gov/the-world-factbook/countries/somalia/#government
Constitution of the Somali Republic. http://citizenshiprightsafrica.org/wp-content/uploads/2020/10/Somalia-Constitution-1960.pdf +
The first assertion of Freedom of Association in South Africa was in the 1993 Interim Constitution, under Chapter III, Article 17. This Constitution was drafted during the transition to democratic processes leading up to the first post-apartheid elections in 1994, and came into force April 27, 1994, the day of the election.
CIA World Factbook. South Africa. https://www.cia.gov/the-world-factbook/countries/south-africa/#government
United Nations. Peacemaker. SOUTH AFRICA INTERIM CONSTITUTION (1993). https://peacemaker.un.org/documents/south-africa-interim-constitution-1993 +
Article 21 of Chapter II of The Constitution of the Republic of Korea covers Freedom of Association, with the specification that licensing of assembly and association shall not be recognized. The 1948 constitution was adopted upon independence from Japan.
Constitutional History of the Republic of Korea. Constitution Net. 2018. https://constitutionnet.org/country/republic-korea
Constitute Project. Constitution of Republic of Korea. 1948. https://www.constituteproject.org/constitution/Republic_of_Korea_1987
Britannica. Division of Korea. https://www.britannica.com/place/Korea/Division-of-Korea +
The Bill of Rights, Part II of the Interim Constitution of Southern Sudan, first mentions freedom of Association under article 40. The Interim Constitution of Southern Sudan was adopted in 2005, prior to independence from Sudan in 2011.
CIA World FactBook. South Sudan. https://www.cia.gov/the-world-factbook/countries/south-sudan/#government
The interim Constitution of Southern Sudan. 2005. https://www.refworld.org/pdfid/4ba74c4a2.pdf +
The First assertion of freedom of association in Spain was in the 1978 Constitution. It is covered in section 22, of Division I. “The right of association is granted” However the limitations of this right are listed in the following 4 clauses, including the prohibition of secret and paramilitary associations.
European University Institute. Spanish Constitution. 1978. https://www.eui.eu/projects/internationalartheritagelaw/documents/nationallegislation/spain/spanishconstitution1978.pdf +
Chapter III, Article 14 of the Constitution adopted in 1978, allows for freedom of Association along with freedoms of speech, assembly, occupation, and movement. Section 1.c-g covers the circumstances of freedom of association.
CIA World Factbook. Sri Lanka. https://www.cia.gov/the-world-factbook/countries/sri-lanka/#government
Constitute Project. Constitution of Sri Lanka 1978. https://www.constituteproject.org/constitution/Sri_Lanka_2015?lang=en +
The 1998 Constitution of The Republic of Sudan, does not explicitly mention freedom of association, however, Article 26 protects the freedom of succession and organization which is understood to be freedom of Association. The Following draft in the 2005 Constitution does specify freedom of association in article 40.
CIA World Factbook. Sudan. https://www.cia.gov/the-world-factbook/countries/sudan/#government
Prior Constitution of The Republic of Sudan. 1998. University of Minnesota, Human Rights Library. http://hrlibrary.umn.edu/research/sudpriorconst.html
Constitute Project. Constitution of the Republic of Sudan. 2005. https://www.constituteproject.org/constitution/Sudan_2005 +
The 1987 Constitution of the Republic of Suriname promulgates freedom of association under Chapter 5, Article 20.
Organization of American States. Republic of Suriname Constitution 1987, http://www.oas.org/juridico/pdfs/mesicic4_sur_const.pdf +
Freedom of association is asserted in the 1974 Instrument of Government under chapter 2, article 1, section 5.
CIA World Factbook. Sweden https://www.cia.gov/the-world-factbook/countries/sweden/#government
CONSTITUTION OF SWEDEN (1974). The Instrument of Government. https://www.equalrightstrust.org/ertdocumentbank/CONSTITUTION%20OF%20SWEDEN.pdf +
First assertion of freedom of association in Switzerland was in the first Constitution of 1848. Freedom of association is guaranteed under article XLVI of Chapter 1, granted the proceedings nor objects of associations are not illegal.
Swiss Parlament https://www.parlament.ch/centers/documents/de/BV_1848_EN.pdf +
The first assertion of Freedom of Association in Syria was in the 2012 Constitution of the Syrian Arab Republic. It is covered under Title II, Chapter I, Article 45. The Article articulates that the associations or unions should have a national basis, for lawful purposes and peaceful means, and should adhere to the terms and conditions prescribed by law.
Constitution Net. Syria. 2021. https://constitutionnet.org/country/syria
CIA World factbook. Syria. https://www.cia.gov/the-world-factbook/countries/syria/#government
International Labour Organization. Constitution of The Syrian Arab Republic - 2012. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/91436/106031/F-931434246/constitution2.pdf +
Part II article 35 covers the freedom of association in the Constitution of São Tomé e Principe. The country gained independence from Portugal in July 1975, adopting the constitution November 5, 1975.
CIA World Factbook. São Tomé e Príncipehttps://www.cia.gov/the-world-factbook/countries/sao-tome-and-principe/
Constitution of Sao Tome e Principe. Constitute Project. https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_1990 +
The constitution of 1994 of Tajikistan recognizes the freedom of association in Article 28 and is cited to ‘correspond to democratic norms’. Article 8 of the constitution states citizens may form associations that only function and exist within the framework of the constitution.
Tajikistan, Supreme Assembly. 2016. Constitution of the Republic of Tajikistan.
https://www.constituteproject.org/constitution/Tajikistan_2016.pdf?lang=en. (Orig. pub. 1994.). +
Tanzania’s constitution of 1977 article 20 provides every person the freedom to associate. The article highlights five restrictions to the freedom of association which include: violent associations, tribal or religious political associations, and the breakdown of the United Republic.
Judiciary of Tanzania. 2005. THE CONSTITUTION of the UNITED REPUBLIC of TANZANIA. Www.judiciary.go.tz. http://www.judiciary.go.tz/wp-content/uploads/2015/09/constitution.pdf. (Orig. pub. 1977.). +
Thailand has had multiple constitutions since 1932 after the abolition of the absolute monarchy. Section 42 of the latest constitution of Thailand (2017) highlights the ‘liberty to unite and form an association, co-operative, union, organisation, community, or any other group.’ Provision 14 of the 1932 Constitution also highlighted the right to association.Thailand Constitution. 1932. https://media.bloomsburyprofessional.com/rep/files/thailand-constitution-1932-december.pdf. Constitution Drafting Committee. 2017. Constitution of Thailand. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/103607/132859/F-1348511433/THA103607%202019.pdf. +
According to Article 24(1) of the 1973 Bahamas Constitution "Except with his consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties, or to form or belong to trade unions or other association for the protection of his interests." Article 24(2) describes potential grounds or conditions for exception to this right: "Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision- (a) which is reasonably required- (i) in the interest of defence, public safety, public order, public morality or public health; or (ii) for the purpose of protecting the rights and freedoms of other persons; or (b) which imposes restriction upon person s holding office under the Crown or upon members of a discipline force, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
References:
1973 Bahamas Constitution: https://www.bahamas.gov.bs/wps/wcm/connect/04fb4632-1bd7-414f-b66e-9c499b382480/Chap+3+Protection+rights+and+freedoms.pdf?MOD=AJPERES +
The first assertion of the freedom for association in Gambia was in their Constitution within their Independence Order of 1965, ratified February 18th. The independence order was submitted to Great Britain, and the right to association was included in Section 3, Chapter II, Article 11 (“The Gambia Independence Order 1965”, 1965).
1965. The Gambia Independence Order 1965. February 18. https://citizenshiprightsafrica.org/wp-content/uploads/2020/02/Gambia-Constitution-1965.pdf. +
The constitution of the fourth republic of Togo adapted in 1992 and revised in 2007 details in article 30 the right of association, assembly, and peaceful demonstration without violence. Togo. 2007. The 1963 constitution does not address freedom of association. “Togo 1992 (Rev. 2007) Constitution - Constitute.” Www.constituteproject.org. 2007. https://www.constituteproject.org/constitution/Togo_2007. +
The Tongan constitution was adopted in 1875 and was last revised in 2020. The constitution does not explicitly state a freedom of association, rather the freedom of assembly in Article 8 which highlights ‘The Freedom of Petition’ in which all people are free to peacefully send letters and petitions to the legislators and king. Kingdom of Tonga. 2021. CONSTITUTION of TONGA. https://www.parliament.gov.to/parliamentary-business/documents/constitution-of-tonga/file/487-act-of-constitution-of-tonga-2020-revised-edition. (Orig. pub. 1875.). +
The Trinidad and Tobago constitution Act of 1976 revised last in 2007 declares the rights enshrined in the constitution in Chapter 1 Part 1 article 4j which details: ) the ‘freedom of association and assembly’.
Trinidad and Tobago. 1978. “THE CONSTITUTION of the REPUBLIC of TRINIDAD and TOBAGO.” https://www.oas.org/juridico/english/mesicic3_tto_constitution.pdf. +
The Tunisian Constitution of 2014 (Arabic: 2014 دستور تونس) was adopted on 26 January 2014, article 35 of the constitution guarantees the freedom of establishment of political parties, unions, and associations while respecting financial transparency and the rejection of any incitement of violence. Tunisia had included the right of freedom of association after independence from France in 1959 as part of Article 8. The original short lived 1861 constitution does not highlight any freedom of association.
Bourguiba, Habib. 1959. “WIPO Lex, Tunisia, the Constitution of Tunisia, 1959.” Www.wipo.int. 1959. https://www.wipo.int/wipolex/en/legislation/details/7201.
National Parliament. 2014. “WIPO Lex, Tunisia, the Constitution of the Republic of Tunisia, 2014.” Www.wipo.int. 2014. https://www.wipo.int/wipolex/en/legislation/details/14847. +
The first instance of the right of freedom of association was the second Turkish Constitution(1924 Türk Anayasası), in Section V which detailed multiple rights including the Freedom of Assembly.
Earl, Edward Meade. "The New Constitution of Turkey." Political Science Quarterly 40, no. 1 (March 1925): 96-97. +
Turkmenistan after independence from the Soviet Union had multiple constitutions; the earliest instance of the right of freedom of association is the 1992 Constitution which states in article 28 'Citizens have the right to form political parties and other social associations which operate within the framework of the Constitution and laws'. There are 3 constitutions which existed as the Turkmen SSR.
Turkmenistan. 1992. “Constitution of Turkmenistan.” Web.archive.org. 1992. https://web.archive.org/web/20150414030847/http://www.uta.edu/cpsees/TURKCON.htm. +
The kingdom of Tuvalu’s constitution first asserts the freedom of association and assembly as part of section 11 of the 1982 constitution revised in 2008, and is developed in more detail in section 25 which describes the provisions and purposes of the freedom. Tuvalu is a part of the Commonwealth.
Parliament of Tuvalu. 1986. THE CONSTITUTION of TUVALU. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/3899/95791/F656430737/TUV3899.pdf. (Orig. pub. 2008.). +
According to the constitution of the Republic of Uganda article 29 the first instance of the Rights and protections such as the freedom of association which include: “Protection of freedom of conscience, expression, movement, religion, assembly and association.” The Right is then defined in section e; which details the freedom to form and join associations or unions, including trade unions and political and other civic organisations.
Republic of Uganda. 1995. Constitution of the Republic of Uganda. Www.parliament.go.ug. https://www.parliament.go.ug/documents/1240/constitution. (Orig. pub. 2018.). +
The first instance of Ukraine allowing the freedom of association is the Ukraine SSR’s 1937 Constitution which entails the (в) свобода зборів і мітингів,г) свобода вуличних походів і демонстрацій.) which translates to the freedom of c) freedom of assembly and rallies, d) freedom of street marches and demonstrations, which can be equivalent to the freedom of association.
Extraordinary XIV Ukrainian Congress of Soviets. 1937. “Constitution (Basic Law) of the Ukrainian Soviet Socialist Republic .” Wikisource. 1937. +
The United Arab Emirates constitution ‘dastūr’ of 1971 temporarily developed after the unification of the 6 Emirates details in article 33 that the Freedom of assembly and association are guaranteed within the limits of the law. Ras al Khaimah joined the Union in 1972 becoming the 7th Emirate. rulers of the emirates of Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al Quwain and Fujairah. 1971. The constitution was ratified permanently in 1996
“The Constitution of the United Arab Emirates of 1971.” Official Gazette. December 2, 1971 https://www.raalc.ae/wp-content/uploads/2020/09/The-Constitution-of-the-United-Arab-Emirates-of-1971-English-1.pdf. +
The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory).
In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).
There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”
Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257).
Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241).
“Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter. Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”
References:
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
Locke, John. “Letter Concerning Toleration”
Mill, John Stuart. On Liberty
Price, Richard. Observations on the Nature of Civil Liberty. London: Edward and Charles Dilly and Thomas Cadell, 1776.
While there are multiple instance of implied rights of association and petition such as the Magna Carta and the Petition of Right in 1628, the first explicit right to association is Trade Union Act, 1871 which granted the right to form and join trade unions for the purpose of protecting their interests and improving working conditions.
Trade Union Act, 1871. 1871. https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/98373/117044/F1671923749/IRL98373.pdf.
Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from [[Probable year:: 1776]], which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.
Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right ("Freedom of Assembly and Petition"). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political).
As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association:
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258).
Since the [[Probable year:: 1950]]s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In [[Probable year:: 2000]], in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association.
In Roberts v. US Jaycees, an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.”
Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”
Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”
Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”
Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.
References:
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
The first instance in US constitutional law addressing the equivalent of the freedom of association is the inclusion of the right of freedom of assembly in the First Amendment to the United States constitution adopted in 1791. The amendment states: ‘That Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.’ The Supreme Court has asserted in cases such as NAACP v. Alabama (1958) that the amendment includes the right of freedom of association.
The White House. 2023. “The Constitution.” The White House. 2023. https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=The%20First%20Amendment%20provides%20that.
The first instance of Freedom of Association in Uruguayan constitution is the 1934 constitution which stated in article 38 according to the translation: “Article 38.- All persons have the right to associate, whatever the object they pursue, provided that they do not constitute an illegal association declared by Law.
”“Constituci�N de La Rep�Blica - 1934.” 1934. Web.archive.org. 1934. https://web.archive.org/web/20131216185532/http://www.parlamento.gub.uy/Constituciones/Const934.htm. +
The first instance of the right of association is guaranteed in the 1992 Constitution of Uzbekistan. The 34th article roughly states that all citizens have the right to association and that no one may infringe on the rights, freedoms and dignity of the individuals.
08.12.1992. The Constitution of the Republic of Uzbekistan. 1992. Lex.uz. 1992. https://lex.uz/docs/4032775. +
The first instance of the freedom of association in the Vanuatuan Constitution is in the first edition after independence in 1980 asserts in Chapter 2 Part 1 in article 5 sub article h that all individuals are entitled to freedom of assembly and association without discrimination.
REPUBLIC OF VANUATU. 1980. “CONSTITUTION of the REPUBLIC of VANUATU.” https://parliament.gov.vu/images/pdf/constitution.pdf. +
There are multiple constitutions and iterations of the Venezuelan constitution and the first instance of freedom of association is the 1961 constitution which indicated in article 70 that everyone has the right to associate for lawful purposes, in accordance with the law.
Bolivarian Republic of Venezuela. 1961. “Constitución de Venezuela, 1961 Con Reformas de 1983.” Pdba.georgetown.edu. 1961. https://pdba.georgetown.edu/Constitutions/Venezuela/ven1961.html. +
The first instance of the freedom of association in Vietnam is the 1946 constitution of the Democratic Republic of Vietnam, in Article 10 which states in translation; Vietnamese citizens have the right to: Freedom of organization and meeting, among other rights. Upon reunification of the North and South of Vietnam the 1992 Constitution indicated in article 69 that citizens are entitled to freedom of speech … assembly, association and demonstration in accordance with the law.
“Hiến Pháp 1946 Việt Nam Dân Chủ Cộng Hòa.” 1946. Thuvienphapluat.vn. 1946. https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Hien-phap-1946-Viet-Nam-Dan-Chu-Cong-Hoa-36134.aspx?v=d. Socialist Republic of Vietnam. 1992. “1992 CONSTITUTION of the SOCIALIST REPUBLIC of VIETNAM (as Amended 25 December 2001).” Http://Www.vietnamlaws.com/Freelaws/Constitution92%28aa01%29.Pdf/. 1992. https://web.archive.org/web/20081016121441/http://www.vietnamlaws.com/freelaws/Constitution92%28aa01%29.pdf/. +
First instance of the right to association is the 39th Article in the 1991 constitution which stated: ‘Citizens all over the Republic may, in a manner that does not contravene the provisions of this constitution, associate politically, professionally, and in trade unions.‘ Further guaranteeing this right in the article stating the various types of associations permitted.
LL.M., Prof. Dr. Axel Tschentscher,. 1991. “Yemen Constitution.” Www.servat.unibe.ch. ICL. May 16, 1991. http://www.servat.unibe.ch/icl/ym00000_.html. +
Zambia states in its constitution of 1991 that every person in Zambia has the right to: freedom of conscience, expression, assembly, movement and association according to article 11 as part of fundamental rights. President and Parliament of Zimbabwe. 1991. “Zambia 1991 (Rev. 2009) Constitution - Constitute.” Www.constituteproject.org. 1991. https://www.constituteproject.org/constitution/Zambia_2009?lang=en. +
Zimbabwe first highlights the right of association in section 21. Protection of freedom of assembly and association of the 1980 constitution after independence from the United Kingdom.
Zimbabwe. 1980. “CONSTITUTION of ZIMBABWE.” AceProject. 1980. https://aceproject.org/ero-en/regions/africa/ZW/Constitution%20of%20Zimbabwe%201980.pdf. +
This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late [[Probable year:: 1800]]s , writers such as Mill and Leo XIII pushed the idea into the mainstream. +
Pope Leo XIII forcefully argued for free association in Section 51 of Rerum novarum ([[Probable year:: 1891]]) , an extremely influential text in Catholic thought.
"Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them." +
John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right. (Boyd, 241)
"'Suppose this Business of Religion were let alone,' Locke hypothesizes, 'and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.' Under conditions of differential treatment, such persons, 'united together by one common persecution,' would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter." (Boyd, 241)
Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues in On Liberty that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).
References:
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
John Stuart Mill. On Liberty. Oxford World Classics +
Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.
Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;” +
Constitutions written after [[Probable year:: 1900]] very often protect free association.
As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law).
For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act [[Probable year:: 2012]] bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement.
Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in [[Probable year:: 2012]]. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in [[Probable year:: 2014]], prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in [[Probable year:: 2014]]. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation.
In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments.
Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.
No.
The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “"deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.
References:
Cornell Law School, Legal Information Institute, “First Amendment”: https://www.law.cornell.edu/wex/first_amendment +
Yes. As seen in Roberts v. US Jaycees, the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.
Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed,
A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association.
Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with.
Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it.
Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.
Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.
References:
Buckley v. Valeo, 424 U.S. 1 (1976)
Christian Legal Society v. Martinez, 561 U.S. 661 (2010),
Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995),
New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association.
In Roberts v. US Jaycees, an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.”
Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”
References:
Boy Scouts of America v. Dale, 530 U. S. 640
NAACP v. Alabama, 357 U. S. 449
NAACP v. Button, 371 U.S. 415 (1963)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission [[Probable year:: 2016]]) . In response to the crimes committed by the organization, Congress passed a Force Act in [[Probable year:: 1870]] and the Ku Klux Klan Act in [[Probable year:: 1871]], which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the [[Probable year:: 1963]] bombing of a black church in Alabama, numerous murders including that of three civil rights workers in [[Probable year:: 1964]] Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right.
In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.
Religious rights often conflict with the right to free association. As observed in Christian Legal Society v. Martinez, where a Christian student organization argued their First Amendment right to prohibit non-christians from their group, religious associations have used their rights to religious freedom to restrict certain individuals from associating with them. Though, as the Supreme Court ultimately ruled against the Christian Legal Society, rights to free association were ultimately upheld over contradicting religious rights.
A similar issued was observed in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. Though, in this case, the Supreme Court asserted the right of groups to prohibit membership from individuals whose beliefs do not coincide with the group mission.Furthermore, Hurley exhibited how religious rights can counter rights to free association, as the decision emphasized that certain individuals could be blocked from associating with religious groups on the basis of their identity.
Rights to public safety additionally contradict rights to free association. This is often the argument made when prosecuting individuals associating with criminal and terrorist groups. For example in City of Chicago v. Morales, the Supreme Court upheld a Chicago law which criminalized public gang association, asserting that gang members had no constitutional rights to free association (Cole). Exhibited by the court’s decision, individuals are not constitutionally protected to align with criminal groups, as the public’s right to safety against such groups weighs against personal rights to association.
In regards to the right to free political association, parties hold a contradicting First Amendment right to limit party membership. Furthermore, while a candidate can identify as associating with a specific political party on a ballot, that party has the ability to disassociate from them (Legal Information Institute, Cornell Law School). Through this, a candidate often cannot freely affiliate with the party they associate with, exhibiting a contradiction to the right to free association.
In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations [[Probable year:: 1966]]) . Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights [[Probable year:: 1953]], 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights [[Probable year:: 1969]]) .
Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston [[Probable year:: 1998]], 172). +
The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson [[Probable year:: 2020]]) . These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the [[Probable year:: 1950]]s and [[Probable year:: 1960]]s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute [[Probable year:: 2020]]) . For example, in [[Probable year:: 1958]], with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson [[Probable year:: 2020]]) . In response to Brown v. Board of Education [[Probable year:: 1954]], Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association.
Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In [[Probable year:: 1928]]’ s New York ex rel. Bryant v. Zimmerman and [[Probable year:: 1951]]’ s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court [[Probable year:: 1928]], [[Probable year:: 1951]]) . In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists.
Later, in the [[Probable year:: 1967]] case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court [[Probable year:: 2020]]) . Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In [[Probable year:: 1971]]’ s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court [[Probable year:: 1971]]) .
These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity.
Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the [[Probable year:: 1976]] case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court [[Probable year:: 1976]]) . Later, in the Roberts v. United States Jaycees court case of [[Probable year:: 1984]], the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein [[Probable year:: 2020]]) .
Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander [[Probable year:: 2008]], 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development [[Probable year:: 1992]]) .
Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.
John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in [[Probable year:: 1669]]. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, [[Probable year:: 1669]]” ). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, [[Probable year:: 1669]]” ). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.
Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “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 Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.
French diplomat Alexis De Tocqueville traveled to the United States in the early [[Probable year:: 1800]]s in order to observe the country, and in [[Probable year:: 1835]] he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.
Decades later, John Stuart Mill came to a similar conclusion in his [[Probable year:: 1859]] work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.
The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent "right of association," has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”).
This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.
The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.
“John Locke, Two Treatises ([[Probable year:: 1689]]) - Online Library of Liberty,” accessed June 19, [[Probable year:: 2020]], https://oll.libertyfund.org/pages/john-locke-two-treatises-[[Probable year:: 1689]].
Locke, John, “A Letter Concerning Toleration,” trans. William Pope, [[Probable year:: 1689]], accessed at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/toleration.pdf, 9.
Eric R. Claeys, “The Private Society and the Liberal Public Good in John Locke's Thought,” SSRN Electronic Journal, [[Probable year:: 2007]], https://doi.org/10.[[Probable year:: 2139]]/ ssrn.1027965.
“Constitution of the United States of America,” Bill of Rights Institute, October 3, [[Probable year:: 2019]], https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE. 5
“Right to Peaceful Assembly” (Law Library of Congress, [[Probable year:: 2014]]) , https://www.loc.gov/law/help/peaceful-assembly/right-to-peaceful-assembly.pdf.
John Stuart Mill, “Mill, ‘On Liberty,’” in The Routledge Philosophy Guidebook to Mill: On Liberty, ed. Jonathan Reiley (New York, NY: Routledge, [[Probable year:: 1998]]) , 45.
Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” The Yale Law Journal 74, no. 1 ([[Probable year:: 1964]]) : p. 1, https://doi.org/10.[[Probable year:: 2307]]/ 794804
Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.
The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.
One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.
Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States - Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States - Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.
Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.
References:
Lynne Chandler Garcia, “Hague v. Committee for Industrial Organization,” Hague v. Committee for Industrial Organization, accessed June 16, 2020, https://mtsu.edu/first-amendment/article/619/hague-v-committee-for-industrial-organization.
David L Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/824/public-forum-doctrine.
“Madsen v. Women's Health Center, Inc. - The First ...,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/10/madsen-v-women-s-health-center-inc.
Kevin Francis O'Neill, “Time, Place and Manner Restrictions,” Time, Place and Manner Restrictions, accessed June 17, 2020, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.
“Right to Peaceful Assembly: United States - Law Library of Congress,” accessed June 19, 2020, https://www.loc.gov/law/help/peaceful-assembly/us.php.
The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.
Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of [[Probable year:: 1917]] (and its [[Probable year:: 1918]] amendments) and the Immigration Act of [[Probable year:: 1918]], and the Justice Department’s infamous Palmer Raids in [[Probable year:: 1920]]” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War +
In Roberts v. US Jaycees, the Supreme Court noted that US jurisprudence has created two constitutionally protected categories of association: expressive (e.g. interest groups and political parties) and intimate (e.g. friends and family). There is little originalism present in key expressive-association rulings. NAACP v. Alabama ([[Probable year:: 1959]]) , the first case where the Supreme Court held that a right to expressive association exists, did not draw on originalism. There is also little originalism present in the intimate-association jurisprudence, though it has been influenced by long-standing common-law ideas.
The Supreme court established the idea of intimate association in Roberts, holding that it “has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” The majority opinion cites Meyers v. Nebraska ([[Probable year:: 1923]]) , a case that helped establish a right to make individual educational choices. The opinion cites old ideas going beyond education, stating that the Fourteenth Amendment guarantees a right to “marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Though it does not embrace originalism, the ruling does invoke historical common-law understandings that may have existed when the Constitution was written.
As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders explicitly chose not to include free association in the Bill of Rights. James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. Boyd writes that Madison viewed association as a “second-order” right (Boyd [[Probable year:: 2008]], 258), whose existence is tolerable because institutions can mitigate its worst effects (247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association:
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
Boyd suggests several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258).
Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right. The state constitutions mentioned in my original piece on freedom of association should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political).
The opinion in NAACP v. Alabama derives freedom of expressive association from a combination of speech, assembly, and the Fourteenth Amendment, not merely freedom of assembly. It states that, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”
References:
NAACP v. Alabama: https://www.law.cornell.edu/supremecourt/text/357/449
Meyer v. Nebraska: https://www.law.cornell.edu/supremecourt/text/262/390
Richard Boyd, “The Madisonian Paradox of Freedom of Association”:
https://www.cambridge.org/core/journals/social-philosophy-and-policy/article/madisonian-parad
ox-of-freedom-of-association/ABDB2F9951FD811C0AC84F76327EBACC
List of key expressive association rulings:
https://mtsu.edu/first-amendment/encyclopedia/case/142/expressive-association
Congress Annotated Constitution: (“Freedom of Assembly and Petition”)https://constitution.congress.gov/browse/essay/amdt1_4_1/#:~:text=First%20Amendm ent%3A,for%20a%20redress%20of%20grievances.
Various schools of Chinese Philosophy contribute to society’s understanding of the right to free association.
Legalism, with its adherence to strict punishments for any violation of the law, limits the liberty of citizens to freely associate. At its core, Legalism restricts the ability of citizens to act freely, as under the philosophy individual’s lives become entirely controlled by administrative acts (MacCormack, 62). Furthermore, the legalist state was not concerned with the liberties of civilians. Rather, legalists focused their efforts towards strengthening the economic and military strength of the state through authoritarian power (MacCormack, 63). Thus, in the school of Legalism, there is little tolerance for associations that counter the laws of the state, undermining the right to free association.
Consequently, Confucianism emphasizes the ability of citizens to rebel against the emperor (Peek, 523). This bolsters the right to free association, as individuals are encouraged to join other political parties in the face of an unjust regime.
Though, more similarly to Legalism, additional elements of Confucianism vastly undermine the right to free association. As Confucianism evolved, the belief system began to emphasize a strict code of ethics, creating a rigid social structure (Peek, 532). This limited the ability of followers to freely associate, as they were confined to following a strict code of behavior. Thus, while Confucianism initially appears to support the right to free association, its development as a belief system has constricted the liberties of followers.
While Taoism does not discredit the right to free association, it does weaken the importance of associations as a whole. Advocating that individuals put aside their distinguishing characteristics, Taoism stresses that there “is one underlying and uniting all phenomena” among human beings (Chan, 316). Furthermore, Taoists argue that human beings must transcend their personal distinctions, diminishing the value of individuals’ associations. Thus, while Taoism does not proclaim individuals should not be able to associate themselves with certain groups, it does argue that associations are ultimately meaningless.
References:
Wing-Tsit Chan, "19. Neo-Taoism" In A Source Book in Chinese Philosophy edited by Chan, 314-335. Princeton: Princeton University Press, 1963. https://doi.org/10.1515/9781400820030-025
MacCormack, Geoffrey. “The Legalist School and Its Influence upon Traditional Chinese Law.” ARSP: Archiv Für Rechts- Und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 92, no. 1 (2006): 59–81. http://www.jstor.org/stable/23681616.
Peek, John M. “Buddhism, Human Rights and the Japanese State.” Human Rights Quarterly 17, no. 3 (1995): 527–40. http://www.jstor.org/stable/762392.
Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives.
Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles.
According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes “including economic, religious, and other forms of association” (Miller 878, 1996).
References:
Kimberley Brownlee and David Jenkins, Stanford Encyclopedia of Philosophy, “Freedom of Association”: https://plato.stanford.edu/entries/freedom-association/
Gregory R. Johnson, “The First Founding Father: Aristotle on Freedom and Popular Government,” 2001: https://www.hoover.org/sites/default/files/uploads/documents/0817929223_29.pdf
Miller, Fred D. “Aristotle and the Origins of Natural Rights.” The Review of Metaphysics 49, no. 4 (1996): 873–907. http://www.jstor.org/stable/20129946.
Bentham approached freedom of association as he did free expression: as a means of political advocacy and dissent. In Chapter IV Section 24 of A Fragment on Government, he advocates for “the liberty of public association; or the security with which malecontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.”
References:
A Fragment on Government: https://en.wikisource.org/wiki/A_fragment_on_government/Chapter_4 +
The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.
Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association.
Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts and monastic codes appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.
References:
Dalai Lama, “Buddhism and Democracy,” Washington DC, 1993: https://www.dalailama.com/messages/buddhism/buddhism-and-democracy
Peek, John M. “Buddhism, Human Rights and the Japanese State.” Human Rights Quarterly 17, no. 3 (1995): 527–40. http://www.jstor.org/stable/762392.
Welch, Holmes. “The Reinterpretation of Chinese Buddhism,” The China Quarterly, 1952
Harriet Taylor, a feminist philosopher from the 19th century, wrote about the restrictions that limit women to the private sphere. Men, according to Taylor, decided that the private and domestic sphere is women’s “proper sphere”; however, she argues that any group’s proper sphere is the “largest and highest which they are able to attain to” (Taylor). Taylor argues that this is not possible without complete liberty and, if men are convinced of their mental superiority, should not be an issue if women and men are afforded the same opportunities (Taylor). This argument can be adapted to freedom of association because it essentially concludes that both women and men have the equal opportunity to associate with organizations if he or she can prove his or her worth.
In the Constitution, there are two interpreted freedom of associations. The First Amendment includes the freedom of expressive association. The Fourteenth Amendment includes the freedom of intimate association. Intimate association is an individual’s right to form/maintain close personal relationships without interference from the government (Hudson, [[Probable year:: 2009]]) . Expressive association, recognized in NAACP v. Alabama ([[Probable year:: 1958]]) , refers to the right of individuals to congregate or association for expressive purposes, such as advancing a political opinion (Hudson, [[Probable year:: 2009]]) . In Roberts v. United States Jaycees ([[Probable year:: 1984]]) , Justice Brennan wrote the majority opinion. Brennan concluded that the Jaycees could not exclude women from membership because their purpose as an economic organization for the advancement of young men was not jeopardized if women were members (Bernstein, [[Probable year:: 2009]]) . Justice O’Connor concurred, but distinguished between expressive and non-expressive groups, which exist for other purposes (Bernstein, [[Probable year:: 2009]]) . O’Connor concluded that the Jaycees primarily existed for economic reasons, not expressive ones, and, as such, could not exclude women on the basis that it would compromise their mission (Bernstein, [[Probable year:: 2009]]) .
Hobbes distinguishes between public political networks, or bodies politic, which are authorized by the commonwealth (states and provinces, for example), and private associations (251). Hobbes is not particularly skeptical of small, private organizations made for harmless, known purposes. However, he distrusts larger organizations with nefarious or unknown intentions. He states that, “Irregular Systemes, are those which having no Representative, consist only in concourse of People; which if not forbidden by the Common-wealth, nor made on evill designe, (such as are conflux of People to markets, or shews, or any other harmelesse end,) are Lawfull. But when the Intention is evill, or (if the number be considerable) unknown, they are Unlawfull” (252). Regarding bodies politic, Hobbes argues that their representation must be limited and determined by the commonwealth, since the commonwealth’s ultimate authority cannot be supplanted (252).
Hobbes identifies groups that we would today call private political associations: groups formed “not by obligation of one to another, but proceeding onely from a similitude of wills and inclinations” (265). He distrusts these groups, arguing that they are “for the most part unnecessary, and savour of unlawfull designe; and are for that cause Unlawfull, and go commonly by the name of factions, or Conspiracies” (265).
References:
Hobbes, Leviathan +
It is natural for people within society to surround themselves with people who are like-minded and develop associations based on these commonalities that allow them to pursue experiences that they believe will benefit them. It is this natural grouping that provides the framework for the freedom of association that society values because of its ability to connect people on another level without the government regulating the practices and the function of the group. Immanuel Kant believed that individuals should be allowed to pursue their own life experiences and find joy in the things that they do, paving the way for allowing a sort of freedom of expression within his version of society. Throughout his various works, Kant describes the conditions for allowing freedom of association, despite being cautious of the effects of allowing multiple associations within society.
The freedom of association does not come without limitations within Kant’s political theory of the state. Kant claimed that, “The state thus does not have the right to arrange the inner constitution and church affairs according to its own view of what seems advantageous and to prescribe or command the faith and rituals of worship (ritus) (for this must be left entirely to the teachers and chairmen that the people has chosen), but, rather, the state has only the negative right to keep the influence of the public [religious] teachers away from the visible, political commonwealth, which could be detrimental to public peace; hence the state has the right in internal conflicts or conflicts among the various churches not to allow civil harmony to be endangered, which is thus a right of the police” (Kant [[Probable year:: 2006]], 125). It is his introduction of an inner constitution that implies that there is a freedom of association based on voluntary terms. Outside of the simple definition of a church as an institution with extreme influence based on a belief in a higher authority, religion can be seen as an association since people with the same beliefs come together due to their commonalities in the things they believe. Due to this, Kant believes that there is a freedom of associations that may come together, yet they are still subjected to the public laws and the civil constitution established by the state. Kant also notes that the government is still obligated to allow the association to do as they please, but they cannot develop social laws and norms that the people must follow according to the law. All involvement in external affairs outside the state are simply joined on a voluntary basis since Kant’s focus was on the enjoyment one could derive from their life experiences, even if it meant joining another institution. Furthermore, Kant noted that “A third kind of right is necessary for the preservation of the state-the right of inspection (ius inspectionis). This requires that no association which could influence the public welfare of society (publicum), such as an association of political or religious illuminati, may be kept secret; at the request of the police, it must not refuse to disclose its constitution. But only in cases of emergency may the police search anyone's private residence, and in each case, they must be authorized to do so by a higher authority” (Kant [[Probable year:: 2006]], 123). Despite the freedom of association noted before, it does not mean that such associations are free from any sort of government intervention. Kant allows such government involvement when the state believes that the institution in question can pose a threat to the commonwealth and the rule of law. Kant claims that the state can only impose negative liberties on these associations since, as noted before, they have their own inner constitutions that allow them any sort of positive liberties outside the ones given to all by the government. In addition, these institutions must be public to allow the state to monitor its affairs to again make sure that it does not interfere with the government laws or the welfare of the community. The idea of freedom of association is still a strong pillar within Kant’s vision of society and like the people consenting to the government rule, these associations must be consented to by the people who choose to associate themselves with it.
The state’s involvement in public affairs whether they are a part of the association is necessary for the preservation of the individuals within society that allows them to follow their own life path. Due to this sentiment, Kant wrote that “In the case of a crime on the part of a subject that makes any association with him a danger for the state, the ruler has the right of banishment (that is, deportation) to a province in a foreign country where he will not enjoy any of the rights of a citizen” (Kant [[Probable year:: 2006]], 134). Kant’s main concern is the well-being of the rest of society outside the association and the ways that the association will affect those outside and around the association in question. Therefore, the state has the obligation to monitor the associations and interfere when the rights of others are violated, putting the civil constitution above any inner constitutions. This contributes to Kant’s purpose of the government, which is to consent to the social contract in exchange for protection of rights from the government against others. The state must take responsibility for the rights and liberties that individuals have even if it means involving themselves in the lives of the people to protect them. In addition, when discussing the history of humankind, Kant claimed that “At the level of culture at which the human race still stands, therefore, war is an indispensable means of bringing about progress in culture. And only after culture has been perfected (only God knows when this would be) would a lasting peace be salutary for us and only through such culture would it become possible. We are thus, as concerns this point, most likely ourselves to blame for the ills about which we so loudly complain. And the holy scripture is completely right to portray an amalgamation of peoples into a single society and their complete liberation from external threats as a hindrance, since their culture had but hardly begun, to all further culture, and as a descent into incurable corruption” (Kant [[Probable year:: 2006]], 35). Although Kant’s approves of the freedom of association, he remains skeptical about what allowing these groups to come together means for the rest of society and for the state. He acknowledges that these communities form to create their own culture and remains skeptical because he recognizes that without plurality or too much plurality within society, problems arise. Specifically, he claims that with associations there is always a risk of corruption since people are trying to spread their lifestyle to others, imposing on others’ freedoms and liberties to do as they please. Kant wants to make sure that there is a freedom to associate, but with this right is the necessity for it to stay public and for the government to involve itself in the matters of the community to make sure that the possibility of corruption does not become a reality. Regardless of this possibility, Kant does believe that society can create associations that will not affect the individuals outside of the group and therefore allows for association among the people.
Despite allowing freedom of association within society, Kant sees the dangers behind it and the way that the group can affect the whole society. His main concern is the corruption that could be a result of the groups that will change the way that people enjoy the liberties that the government has been tasked with to protect. Due to the belief in pursuits for personal satisfaction, Kant believes that this includes pursuing associations that satisfy the individual so long as it adheres to the standards set by the government and if it does not interfere with the interests individuals outside of the association. Most of Kant’s examples pertain to the obvious religious associations within society but also reference the unions, family, political parties, corporations, and other civil society associations, all of which change the way that society functions and the way individuals choose to live their lives. Kant believes in the freedom of association with the belief that the government and the overall well-being of society should transcend the needs and the beliefs set forth by the associations.
References:
Kant, Immanuel, Pauline. Kleingeld, Jeremy. Waldron, Michael W. Doyle, and Allen W. Wood. Toward Perpetual Peace and Other Writings on Politics, Peace, and History. New Haven: Yale University Press, [[Probable year:: 2006]].
Freedom of Association/Philosophical Origins/Tradition contributions/Lockean Thought/English Empiricism +
Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In A Letter, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).
References:
Daniel, Alex, "Speech Locked Up: John Locke, Liberalism and the Regulation of Speech" (2013). Student Works. 154.
https://scholarship.shu.edu/student_scholarship/154
Locke, John. “A Letter on Toleration” +
One central idea of Marx’s theory is the free association of producers. That is, workers are able to freely determine what associations and organizations they can form to contribute to the economy (Fetscher, [[Probable year:: 1973]], 459). Though this is not what one would conventionally describe as free association - which usually refers more to civic and political groups - it is an interesting contribution to the study of free association.
In Volume One of Capital, Marx states the following:
“The lifeprocess of society, which is based on the process of material production, does not strip off its mystical veil until it is treated as production by freely associated men, and is consciously regulated by them in accordance with a settled plan. This, however, demands for society a certain material groundwork or set of conditions of existence which in their turn are the spontaneous product of a long and painful process of development” ([[Probable year:: 1867]]) .
References:
Fetscher, Irving “Karl Marx on Human Nature,” Social Research Fall 1973; 40, 3; Periodicals Archive Online
Marx 1867: https://web.stanford.edu/~davies/Symbsys100-Spring0708/Marx-Commodity-Fetishism.pdf +
While Bentham’s free association is a political right, in On Liberty, Mill advocates for near-universal free association: “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill [[Probable year:: 1859]], 16). In his introduction, Mill makes clear that his ideas of liberty come from utilitarianism, not natural rights, stating that, “I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being” (14).
References:
On Liberty: https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf Schofield: https://core.ac.uk/download/pdf/1896809.pdf +
As mentioned above (section 1), John Locke’s 1689 “Letter Concerning Toleration” is widely believed to be the first written source to address, albeit indirectly, the right to freedom of association. While it is true that no source written prior to 1689 specifically explores the right in its entirety, there were a number of Reformation-era thinkers whose work formed the basis for Locke’s belief in the benefits of granting the right to free religious association. These sources were primarily English, written by such philosophers as Richard Hooker and Thomas More, though there is some evidence that Locke drew on themes from John Calvin as well. Among Locke’s most prominent sources of inspiration and guidance is Richard Hooker’s influential work, The Laws of Ecclesiastical Polity. This book, much of which was published posthumously in the late 1590s, was Hooker’s attempt to defend the fledgeling Anglican Church against attacks from the growing population of English Puritans. It explores a number of religious topics, one of which is the concept that all Churches, including those of “Rome, Corinth, Ephesus, England, and so the rest...are public Christian societies. And of such properties common unto all societies Christian, it may not be denied, that one of the very chiefest is Ecclesiastical Polity” (Hooker, 178). This idea that religious groups could be considered a “society” of people is advanced in Locke’s “Letter,” which takes the work one step further by examining one’s freedom to belong to these various religious societies. Hooker also explores this idea to some extent when he writes that “we rather incline to think it a just and reasonable cause for any Church, the state whereof is free and independent if in these things it differ from other Churches, only for that it doth not judge it so fit and expedient to be framed therein by the pattern of their example, as to be otherwise framed than they” (Hooker, 275).
In this passage Hooker essentially argues that different sects of Christianity ought to be allowed to practice their preferred faith in peace, provided they similarly respect other branches’ rights to believe and associate. Perhaps is not a surprising statement to find in a defense of the Anglican Church after it broke away from Catholicism, but Hooker’s conviction that “Churches are rather in this case like divers families than like divers servants of one family” nevertheless seems to have profoundly influenced Locke’s work in the same area (Hooker, 277).
In addition to this conceptual framework, Locke also seems to draw on Hooker for an interpretation of John Calvin’s teaching. Hooker’s Fourth Book of Laws quotes Calvin, who supposedly writes that, “Yea, sometime it profiteth and is expedient that there be difference, lest men should think that religion is tied to outward ceremonies. Always provided that there be not any emulation, nor that Churches delighted with novelty affect to have that which others have not.” (Hooker, 276). This, Hooker says, provides a basis of acceptability for different religious sects to profess their religions differently. By arguing in favor of different churches practicing differently, Hooker also implies a support for citizens’ right to belong to various churches according to how they wish to worship. It is possible that Hooker was referring to Calvin’s statement in The Institutes of the Christian Religion, which says that that “it is a well-known doctrine, and one as to which all the pious are agreed,—that the right consideration of signs does not lie merely in the outward ceremonies, but depends chiefly on the promise and the spiritual mysteries, to typify which the ceremonies themselves are appointed.” (Calvin, Institutes of the Christian Religion, Book IV, Chapter 16, 2). Calvin’s work then proceeds to explain the parallels between circumcision in the Jewish faith and Baptism in the Christian ones, before concluding that “Baptism has been substituted for circumcision (Calvin, Institutes of the Christian Religion, Book IV, Chapter 16, 4). While this does not mean that Calvin believed in one’s right to belong to the association or religion of one’s choice, its influence on Hooker’s statement is apparent. In concert with Hooker and a number of other influences, Calvin’s philosophy guided Locke in his exploration of religious freedom and, by extension, freedom of association.
Locke’s “Letter” also displays some degree of influence from the writings of Thomas More, another Reformation-era thinker whose work addresses the citizen’s role in various religious associations. More’s famous work, Utopia, tells of a fictional country in which society is ordered and governed according to the way that More believed was best. Included in these guidelines are the principles of religious freedom, which likely had some influence on Locke’s thoughts on free association. Sanford Kessler’s “Religious Freedom in More’s ‘Utopia’” notes that “Locke's work contains arguments that are remarkably similar to More’s,” and explains that “In Utopia, religious freedom checked the threat of religious conflict by transforming a plethora of squabbling sects into tolerant, stable supporters of the government” (Kessler, “Religious Freedom”). The actual text of More’s work states that the founder of the mythical society in Utopia had “left matters open, making each person to follow his own beliefs,” (More, 110). While this does more to imply More’s support for religious freedom than for freedom of association, the idea that citizens should be able to belong to whichever religion they choose is certainly evident in Locke’s work on toleration.
Freedom of association was not directly addressed prior to Locke’s work on toleration, but it is clear that Reformation-era philosophers influenced his work. Hooker’s thoughts on religious freedom and the relationship between religious societies shaped the way that Locke thought about religious toleration, and ideas from Calvin and More also influenced his work.
References:
Calvin, Jean, and Henry Beveridge. Institutes of the Christian Religion. Christian Classics Ethereal Library,1845, http://www.ntslibrary.com/PDF%20Books/Calvin%20Institutes%20of%20Christian%20 Religion.pdf, www.ccel.org/ccel/calvin/institutes.html.
Hooker, Richard. Laws of Ecclesiastical Polity. George Routledge and Sons, 1998, https://prydain.files.wordpress.com/2012/06/the_laws_of_ecclesiastical_polity_books_i-i V.pdf.
Kessler, Sanford. “Religious Freedom in Thomas More's ‘Utopia.’” The Review of Politics, vol. 64, no. 2, 2002, pp. 207–229. JSTOR, www.jstor.org/stable/1408764. Accessed 8 July 2020.
More, Thomas. Utopia. Translated by Dominic Baker-Smith, Penguin Classics, 20012.
Rousseau’s political philosophy is generally based on his assessment of familial association and its effect on human society. Most of his works describe the family as the basic form of human interaction, the creation of which is one of the first steps that the “savage man” takes toward civilization. His work does not deal with the right to freedom of association as it exists in modern political discourse, but it does reveal a support for mankind’s tendency to gather into groups with which to live, work, and prosper.
Association itself is key to Rousseau’s political philosophy because in his mind it is a building block for political society. In The Social Contract he writes that humans come together to form communities by surrendering certain “natural” rights and liberties in favor of certain “civil” rights and liberties, such as the protection of private property or the adherence to general ideals of justice. “The problem,” he says, “is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” (43). While the “association” of which Rousseau writes here does not resemble the right to association that most modern states protect in one way or another, the author’s thoughts on this kind of community-building clearly influence his views on the creation of social associations within the broader community. In his “Discourse on Political Economy” Rousseau writes that
Every political society is composed of other smaller societies of different kinds, each of which has its interests and its rules of conduct: but those societies which everybody perceives, because they have an external and authorised form, are not the only ones that actually exist in the State: all individuals who are united by a common interest compose as many others, either transitory or permanent, whose influence is none the less real because it is less apparent, and the proper observation of whose various relations is the true knowledge of public morals and manners. The influence of all these tacit or formal associations causes, by the influence of their will, as many different modifications of the public will. (“Discourse on Political Economy,” 211)
In this passage the modern conception of political association is more easily identified. He seems to view the formation of these “smaller societies” which exist within the State and influence the public will as more or less inevitable, though he does not express any disapproval of their existence.
Rousseau expands upon these views in his discussion of the social “circles” within Genevan political society, which he describes in his “Letter to Monsieur D’Alembert on the Theater” as the Genevan equivalent of social clubs in England. Again, he points out that the formation of these circles is a natural consequence of communal association, and points out that they do not pose any great danger to the State. “Of all the kinds of relations which can bring individuals together in a city like our own,” he believes that “the circles form incontestably the most reasonable, the most decent, and the least·dangerous ones, because they neither wish nor are able to be hidden, because they are public and permitted, because order and rule prevail in them” (“Letter to Monsieur D’Alembert, 108). These “circles” serve more of a social purpose than a political one, and Rousseau notes that they could potentially have negative consequences by encouraging men to drink too much or women to gossip in excess. He believes that they can influence the general will that governs an ideal community, but these associations do not form with specific political goals in mind. Having weighed the costs and benefits that they bring, Rousseau recommends that the Genevan state should “preserve the circles, even with their faults. For these faults are not in the circles but in the men who compose them; and there is no imaginable form of social life in which the same faults do not produce more harmful effects.” (“Letter to Monsieur D’Alembert,” 110). While his advocacy for the circles’ preservation does not directly indicate Rousseau’s support for freedom of association, his work at least shows an unwillingness to restrict people’s access to associational interaction within political society.
References:
Rousseau, Jean-Jacques. The Collected Writings of Jean-Jacques Rousseau. Translated by Allan Bloom, Publ. for Dartmouth College by Univ. Press of New England, [[Probable year:: 2004]], ia800705.us.archive.org/34/items/RousseauLetterToDAlembertPoliticsTheArtsAllanBloo m_20[[Probable year:: 1811]]/ Rousseau%20-%20%27%27Letter%20to%20D%27Alembert%27%27%3B% 20Politics%20%26%20the%20Arts%20%5BAllan%20Bloom%5D.pdf.
Rousseau, Jean-Jacques, and G. D. H. Cole. The Social Contract; and Discourses. Dent, [[Probable year:: 1963]], Online Library of Liberty,
oll-resources.s3.amazonaws.com/titles/638/Rousseau_0132_EBk_v6.0.pdf.
The transcendentalist movement started in the 1800s and centers itself around the individuality of mankind and the ways that they adhere to their moral standards. This sense of individuality advocated for was challenged by the growing associations and the inevitable developments of the era in which the world continuously relied on one another. Alongside the freedom of association, transcendentalists were tasked with writing their theory based on the changes and the development of these new phenomena. Henry David Thoreau, Ralph Waldo Emerson, and Margaret Fuller all represent the thoughts of the transcendentalists as they try to describe their own version of society while remedying the present problems. With some exceptions and some flexibility on the issue, most transcendentalists would agree that there should not be freedom of association since these groups stifle the moral integrity of the individual by putting the efforts of the group above the individual.
Henry David Thoreau discusses the presence of associations within society and the ways that they affect the moral standards people hold themselves to. Specifically, Thoreau said, “I hear of a convention to be held at Baltimore, or elsewhere, for the selection of a candidate for the Presidency, made up chiefly of editors, and men who are politicians by profession; but I think, what is it to any independent, intelligent, and respectable man what decision they may come to, shall we not have the advantage of his wisdom and honesty, nevertheless? Can we not count upon some independent votes? Are there not many individuals in the country who do not attend conventions?” (Thoreau 1849, 13). Thoreau specifically has a problem with the morality of society and the way that just because majorities form, it does not mean that justice is achieved in society. Thoreau says that humans need to hold themselves accountable when it comes to being morally just and with the presence of associations, people no longer hold themselves accountable morally. He says that associations influence one another rather than making decisions for themselves and because of this justice cannot be fully achieved. One fundamental pillar of transcendentalism is the solitary aspect that allows the individual to become their best selves morally and breaking down large institutions like the government. When discussing associations that fall under the political discussion, Thoreau notes above that it is the independent individual that can make the best most reasonable decision based on their morals and their own personal integrity. For this reason, freedom of association would infringe on this integrity because people would no longer need to hold themselves accountable and would rely on the institution for their own morals even though it might not mean achieving justice. Thoreau continues his discussion on associations as he notes that, “You must live within yourself, and depend upon yourself, always tucked up and ready for a start, and not have many affairs” (Thoreau 1849, 23). Thoreau and the transcendentalists all concur that that best way to become the best an individual could be is through the solitary efforts to live life as one pleases rather than intertwining themselves with the lives of others and living life according to their standards. Specifically, Thoreau notes that individuals should not have many affairs meanings that associations they have should be limited to the necessities of human life therefore limiting the freedom of association. Thoreau’s overall objective is to be morally sound according to one’s own principles and this could be achieved by righting the wrongs one commits and by standing up for the things one might believe are wrong. It was this concept of civil disobedience that contradicts the concept of freedom of association since humans do not stand up to their community out of fear of being excommunicated. With this fear, people are not as likely to commit acts of civil disobedience as Thoreau encourages to maintain a moral standard within society.
Other transcendentalists like Ralph Waldo Emerson carried the conversation about associations forward, by even allowing some associations while remaining skeptical of their effects on society. He initially disproves of associations claiming that “We think all other distinctions and ties will be slight and fugitive, this of caste or fashion for example; yet come from year to year and see how permanent that is, in this Boston or New York life of man, where too it has not the least countenance from the law of the land. Not in Egypt or in India a firmer or more impassable line. Here are associations whose ties go over and under and through it, a meeting of merchants, a military corps, a college class, a fire-club, a professional association, a political, a religious convention;—the persons seem to draw inseparably near; yet, that assembly once dispersed, its members will not in the year meet again. Each returns to his degree in the scale of good society, porcelain remains porcelain, and earthen earthen. The objects of fashion may be frivolous, or fashion may be objectless, but the nature of this union and selection can be neither frivolous nor accidental” (Emerson 1844, 387). In describing what is reality when it comes to freedom of association, Emerson notes that most interactions between people are surface level and have no true moral value to the people involved. Emerson understands that associations are not necessary and might cause more damage to society by numbing people from taking accountability for their actions in society. He also understands that by joining these associations individuals no longer focus on their own self-reliance and begin to need one another more, when people should be living off their own thoughts and capabilities according to Emerson. Emerson focuses on the fact that being self-reliant will contribute to a person’s higher self and therefore the people should actively pursue their own version of what would be their higher self. However, being a part of associations or institutions, would stifle this potential because rather than pursuing a higher individual self, based on individual actions, people become geared towards an agenda that is not of their own and therefore in no way contributing to the development of their higher self. Emerson even notes above that these associations have no other value than what society assigns to them considering that these people can separate themselves from one another for an extended period and when they reconvene nothing has changed. It is the fact that Emerson believes that these associations are very disposable and surface level that makes him question whether these associations are good for society and should be allowed. Emerson carries this thought forward as he notes that “Friendship and association are very fine things, and a grand phalanx of the best of the human race, banded for some catholic object; yes, excellent; but remember that no society can ever be so large as one man. He, in his friendship, in his natural and momentary associations, doubles or multiplies himself; but in the hour in which he mortgages himself to two or ten or twenty, he dwarfs himself below the stature of one” (Emerson 1844, 456- 457). Emerson holds the idea of self-reliance, as Thoreau does, but differs in his approach to freedom of association. Emerson holds that these types of associations should be allowed to exist so long as people retain their individuality and use the associations to further their capabilities within society. However, Emerson is still cautious of these institutions since the ones present were corrupt and lost sight of the original mission of forming the association in the first place. Emerson still believes, as the others do, the importance of being self-reliant but allows these associations for the sole purpose of allowing people to pursue their higher faculties. He believes that in an ideal world, these associations can be good, but the problems come when people begin to rely on them for everything rather than doing things themselves. Emerson concludes that there should be freedom of association with limitations, which differs from the other transcendentalists, but resembles the others in that the associations one forms are toxic and should be secondary when compared to the ability to advance one’s higher self. This is to say that Emerson remains pessimistic about the presence of associations but acknowledges that they have a place within society.
Margaret Fuller puts the discussion of association into different terms as she criticizes institutions and similar associations as harmful to minorities. She carries this notion and criticism of institutions forward as she notes that “This author, beginning like the many in assault upon bad institutions, and external ills, yet deepening the experience through comparative freedom, sees at last that the only efficient remedy must come from individual character. These bad institutions, indeed, it may always be replied, prevent individuals from forming good character, therefore we must remove them” (Fuller 1855,76). Fuller concludes that institutions are detrimental to the state of society due to the oppressive nature they take when it comes to minorities like women and the slave population. Fuller takes more of a feminist approach to the transcendentalist movement in the ways that she describes the way that society in general has abused women and minorities, hence why she believes that being more self-reliant is important. To her, self-reliance frees the oppressed from the chains of discrimination as people can move away from the abusive environments and into a sphere where the individual can live as they please. Although
Fuller’s work specifies about the status of women, most transcendentalists were also abolitionists and again used the same argument that the institutions society formed, stifle the progress of the individual and should therefore be relinquished to do as they please. Like the others, Fuller is concerned with the moral character of the individual and the way that the individual should hold themselves accountable for their moral being. However, she notes that one cannot achieve sound principles because these institutions instill the same values within people so that they do not come to their own conclusions about what principles and ideologies they want to live by. Fuller would have a problem with freedom of association since it is these associations that keep people oppressed and prevent them from moving towards a higher moral standard. Furthermore, in his discussion of resembling sentiments from others, Fuller notes that “Fourier says, As the institutions, so the men! All follies are excusable and natural under bad institutions. Goethe thinks, As the man, so the institutions! There is no excuse for ignorance and folly. A man can grow in any place, if he will. Ay! but, Goethe, bad institutions are prison-walls and impure air, that make him stupid, so that he does not will” (Fuller 1855, 124). Continuing Fuller’s sentiments from before, is the idea that these institutions make people unpleasant due to the things individuals are taught within these institutions. However, what is worth noting is the interchangeability between the words “institution” and “association”. Institutions usually are pillars within society that hold significance and influence the rest of society, while associations are groupings according to similarities between individuals and may or may not influence the rest of society. Fuller specifically names religion as one of the institutions that stifle human progress in society, but from the early discussion of what an association is, religion can be classified as an association as well. It is because of the similarity between the two word’s definition that implicitly asserts that Fuller would not be in favor of the freedom of association because of the brutal treatment of minorities within society.
Fuller values the moral standing of the individual and believes that it only progresses through the individual and the decision they make through their own personal actions and decisions. Like most of the other transcendentalists, freedom of association is not encouraged since they value independents acting in their own moral interests rather than the interests of society.
Transcendentalists face the problem of retaining a level of individuality in a world that is increasingly becoming reliant on one another, playing out the exact problem that the authors describe above. The world now has become increasingly corrupt as Emerson describes and people submit themselves to the agenda of their associates rather than thinking and developing for themselves and for their own private efforts. Transcendentalists now would push for the independence of the individual from associations that they claim poison the integrity of society, preventing people from fully developing their higher beings.
References:
Emerson, Ralph Waldo. 1940. The Complete Essays and Other Writings of Ralph Waldo Emerson edited by Brooks Atkinson. The Modern Library New York.
Fuller, Margaret. Woman in the Nineteenth Century : and Kindred Papers Relating to the Sphere, Condition and Duties, of Woman. Massachusetts: J. P. Jewett ; Jewett Proctor & Worthington ; Sheldon, Lamport, 1855, 1855.
Thoreau, Henry David. Civil Disobedience. New York, New York: Open Road Media Integrated Media, 2015.
While freedom of association is a fundamental human right today, it has not always been recognized as such. Furthermore, several philosophers stretching from the Enlightenment period to the 20th century have argued for restrictions to be placed on freedom of association, rendering it a conditional right. Thomas Hobbes, Jean-Jacques Rousseau, Karl Marx, and Carl Schmitt are four such philosophers who, despite being products of varying centuries, disputed the classification of freedom of association as a fundamental and unconditional right in their respective social, political, and economic contexts.
Thomas Hobbes (1588-1679)
Hobbes viewed freedom of association as an important social right, but not as a fundamental or unconditional one. Freedom of association was subject to political authority under the agreement that both the citizens and authority entered into to maintain societal and political order. This agreement exists to counter the natural state of human life which is “solitary, poore, nasty, brutish, and short” (Hobbes). By giving up some freedom and liberty in exchange for order, protection, and security from the sovereign or authority, the natural state of humanity can be counteracted (Lloyd). Hobbes emphasized that while individuals are allowed to form relationships and create associations with others, these groups are ultimately subordinated to the sovereign, who can dissolve associations for the good of society to maintain peace and order.
Jean-Jacques Rousseau (1712-1778)
Rousseau’s views on freedom of association are heavily centered on his ideal of a social contract. This is a relationship that exists between the individual and the state in which the individual experiences no net loss of freedom, but rather exchanges some of his natural freedom for civil freedom (Bertram). In his seminal work The Social Contract, Rousseau explains this exchange by emphasizing that man should promote the common good of society over his own interests: “Each citizen would then be perfectly independent of all the rest, and at the same time very dependent on the city; which is brought about always by the same means, as the strength of the State can alone secure the liberty of its members.” (Rousseau, 24). The main issue with unconditional freedom of association came from his claim that “the required degree of social cohesion could not, in practice, be achieved merely through appeal to rational self-interest” (Chappell). This is not to say that Rousseau believed in stamping out individuality in its entirety, just that devotion to a stable political and societal status quo should be the main priority of civilized societies.
Karl Marx (1818-1883)
Marx held a more complex view of freedom of association than other political philosophers. His philosophy was rooted in a socially mediated economic structure that would then, in turn, impact a society's political and social practices—he believed in abolishing private ownership of production (capitalism) and instead establishing collective ownership (socialism or communism). He believed that capitalist systems limit and distort freedom of association because of their economically exploitative and class-based structures; relationships in capitalist societies are never between “individuals,” but rather between “workers and capitalist, between farmer and landlord” (Marx, 44). Socialist or communist political and societal structures would allow freedom of association because individuals could unite freely based on their interests and needs (Jian-xing, 351).
Carl Schmitt (1888-1985)
Schmitt was a prominent member of the Nazi party, and his views on freedom of association are very much influenced by his “anti-democratic and anti-liberal” political beliefs (Frye, 818). In a similar approach to Hobbes, Schmitt believed that freedom of association is an important but highly conditional right that is subject to a central authority. If associations prove to be a threat to the central authority or order of society, the authority must dissolve them (Vinx). He stipulates that the decisions of the authority should not be influenced by external morals, but rather solely based on political reasoning (Vinx). His parameters on freedom of association raise concerns over the potential to justify authoritarianism and the abuse of democratic principles.
REFERENCES
Bertram, Christopher, "Jean Jacques Rousseau", The Stanford Encyclopedia of Philosophy (Summer 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = <https://plato.stanford.edu/archives/sum2023/entries/rousseau/>.
Chappell, Richard. “Rousseau and Freedom.” Philosophy, et cetera, April 27, 2005. https://www.philosophyetc.net/2005/04/rousseau-and-freedom.html.
Frye, Charles E. “Carl Schmitt’s Concept of the Political.” The Journal of Politics 28, no. 4 (1966): 818–30. https://doi.org/10.2307/2127676.
Hobbes, Thomas. “The Project Gutenberg eBook of Leviathan, by Thomas Hobbes.” Edited by Edward White and David Widger. The Project Gutenberg eBook of Leviathan, by Thomas Hobbes, March 27, 2021. https://www.gutenberg.org/files/3207/3207-h/3207-h.htm.
Jian-xing, Y., Jun-guo, C. A reconsideration of Marx’s idea of “association of free individuals”. J. Zhejiang Univ.-Sci. 2, 348–355 (2001). https://doi-org.uc.idm.oclc.org/10.1007/BF02839474
Lloyd, Sharon A. and Susanne Sreedhar, "Hobbes’s Moral and Political Philosophy", The Stanford Encyclopedia of Philosophy (Fall 2022 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = <https://plato.stanford.edu/archives/fall2022/entries/hobbes-moral/>.
Marx, Karl. Edited by Matthew Carmody. The Poverty of Philosophy, 2009. https://www.marxists.org/archive/marx/works/1847/poverty-philosophy/.
Rousseau, Jean-Jaques. Translated by G.D.H/ Cole. The Social Contract or Principles of Political Right. Accessed July 13, 2023. https://discoversocialsciences.com/wp-content/uploads/2018/07/Rousseau-Social-Contract.pdf.
Sowell, Thomas. “Karl Marx and the Freedom of the Individual.” Ethics 73, no. 2 (1963): 119–25. http://www.jstor.org/stable/2379553.
Vinx, Lars, "Carl Schmitt", The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2019/entries/schmitt/>.
Williams, Garrath. “Thomas Hobbes: Moral and Political Philosophy.” Internet Encyclopedia of Philosophy. Accessed July 11, 2023. https://iep.utm.edu/hobmoral/.
The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020).
Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009).
The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard.
Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009).
Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because:
“Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991).
From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time.
References:
Federalism, Michael W. Hail, The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.
Freedom and Federalism: The First Amendment’s Protection of Legislative Voting, Steven N. Scherr, 257, The Yale Law Journal, 1991 New Haven.
Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo
Free Speech Federalism, Adam Winkler, 172-173, 187, Michigan Law Review, 2009 Ann Arbor.
Rights to privacy may in some cases conflict with the right to free expression. For instance, according to Duke University Law Professor George Christie, there are cases in Europe in which speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). However, Christie argues that this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).
As explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression.
Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression.
In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.
References:
Christie, George. "Private: The Conflict between Freedom of Speech and Other Rights and Values." ACS Expert Forum (2011). https://www.acslaw.org/?post_type=acsblog&p=7987
"Freedom of Speech: Historical Background." Cornell Law School. Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-1/freedom-of-speech-historical-background
Govindu, V. “CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION.” The Indian Journal of Political Science 72, no. 3 (2011): 641–50.
The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997).
A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015).
As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace.
References:
Americans Say Freedom of Speech is the Most Important Constitutional Right, According to FindLaw.com Survey for Law Day, May 1, PR Newswire Association LLC, 2015 New York.
Freedom of Expression, American Civil Liberties Union, 2020 New York.
The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
In 1919, Justice Holmes, in his dissent regarding the case of Abrams v. United States which saw the arrest of Russian immigrants convicted for handing out anti-war leaflets in New York City, stated that “the right to freedom of expression is at the very foundation of our constitutional theory. The expression of competing ideas in the marketplace of ideas is the best means of discovering the truth.” (Civic 119, 1997). Holmes advocated that the truth is at the “foundation of pursuit of the ultimate good, and pursuit of the ultimate good is the theoretical framework of the Constitution. Therefore, through free expression and the search for the truth, the ‘purpose’ of American liberty and democracy is realized” (Civic 120, 1997).
Almost 20 years later, Justice Benjamin N. Cardozo wrote in the majority opinion of the 1937 case of Palko v. Connecticut (which questioned whether Palko’s second conviction of a crime violated the Fifth Amendment’s protection against double jeopardy) the first explicit hierarchal ordering of human rights (Pacelle Jr.). The verdict of this case caused to Cardozo write that “some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right” (Oyez 2020). Cardozo argued further that certain fundamental rights, including the rights to freedom of speech, religion, and press were the “very essence of a scheme of ordered liberty”(Pacelle Jr., 2020). The next year, Justice Harlan Fiske Stone argued in Footnote 4 of the majority opinion in United States v. Carolene Products that the Court should allow civil and individual rights to occupy a “preferred position” when dealing with economic disputes that also affect fundamental rights (Pacelle Jr., 2020).
Ultimately, from these Supreme Court rulings, one can gather that freedom of expression is a fundamental right that “also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the powers that be to account, plays a vital role in the healthy development process of any society” (Index on Censorship, 2013). As Amartya Sen writes in his book “Development as Freedom,” access to the freedom of expression is a necessity in the development process of a society and is a developmental goal of its own. The freedom is “both the primary end and the principal means of development” (Index on Censorship, 2013).
References:
Preferred Position Doctrine, Richard L. Pacelle Jr., The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.
The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
Why is access to freedom of expression important?, Index on Censorship, 2013 United Kingdom: https://www.indexoncensorship.org/2013/03/why-is-access-to-freedom-of-expression-important/#:~:text=Freedom%20of%20expression%20is%20a,development%20process%20of%20any%20society.
The expression of thoughts, ideas, art, entertainment, and more started long before their rights were explicitly proclaimed or protected. The oldest piece of art archeologists have discovered dates back 45,000 years (Cascone, 2021). Archeologists have found objects from 400,000 years ago that “would probably have required a level of symbolic communication close to that of language.” Hunter gatherer societies had religion of their own (Peoples et al., 263, 2016). But while humans have been expressing themselves for millennia, the protection of their expression has not always been existent – especially when the content of their expression offends or hurts another party in some way.
David Konstan cited Arnaldo Momigliano, who explained: “In the second part of the fifth century and during the greater part of the fourth century every Athenian citizen had the right to speak [in the assembly] unless he disqualified himself by certain specified crimes.’ This freedom was, according to Momigliano, ‘an Athenian fifth-century idea’, and the term that best expressed it was parrhêsi” (Konstan, 1, 2012). However, as David Konstan argues, parrhesia was less of a “right” and more of a “license to express one’s views, whatever the context.” Athenian citizens understood it as “an expectation, a feature of social life.” Konstan compares the ideal to an American citizen who proclaims “This is a free country, isn’t it?” in response to “an attempt to silence them” (Konstan, 4, 2012). However, as evidenced by the trial of Socrates, this ideal is not always protected by law when the idea contradicts beliefs espoused by the community – for Socrates’ case, questioning the gods and thus “corrupting the youth.” On this trial, some “authors affirm the view of Athens as fundamentally tolerant, with Socrates’ trial, ‘the decision to prosecute an old man for saying and doing what he had been saying and doing for so many years,’ as an aberration, perhaps brought about by ‘the wounds of recent history’”, the recent history being the violent tyranny of the Thirty set in place by the victorious Spartans after the Peloponnesian War (Saxonhouse, 102, 2006). Socrates’ teaching of Critias caused a stir in Athens, likely contributing to his prosecution more on his association rather than the content of the expression itself.
The events of the Enlightenment were essential to rights themselves and the development of expression among them. Expression can be understood as the dissemination of someone’s thoughts, thus touching on the ideals of individual ownership of self and self-agency. Locke defines freedom in his Essay Concerning Human Understanding as the “Power in any Agent to do or forbear any particular action, according to the determination or thought of the mind, whereby either of them is preferred to the other” (Locke, 303, 1690). Voltaire was one of the more prolific writers of the era, consistently firing back publicly and publishing satires. He was one of the most influential thinkers in the Enlightenment because of his willingness to challenge the status quo and stretch speech rights into the categories of the offensive, which inspired critique and dissension from others. In one of his dialogues, Voltaire said, “People say stupid and insulting things, but must speaking be forbidden? Everybody can write what they think in my country at their own risk…If it finds that you have spoken foolishly, it boos you; if seditiously, it punishes you; if wisely and nobly, it loves you and rewards you…Without the freedom to explain what one thinks, there is no freedom among men” (Voltaire, 140, 1994). The Enlightenment transformed the conception of rights for the Western world, and led ultimately to the important declarations of the rights to expression found in revolutionary documents.
The first guarantee of expression was speech in the English Bill of Rights of 1689. Among the guarantees were rights found in the American First Amendment, including “the right to petition and freedom of speech and debate” (Vile, “English Bill of Rights”, 2009). The Massachusetts Body of Liberties in 1641 and the adoption of the Virginia Bill of Rights were early American colonial legislatures’ expression of the rights of free press and speech (FIRE, “History of Free Speech”, 2022). The first 10 amendments to the Constitution of the United States include the First Amendment – that “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” (National Archives, “The Bill of Rights: A Transcription”, 2023). All of these are tenets of free expression – they protect the people from prosecution of the state for expression or behaviors that counter state interests. In France, similar revolutionary ideals took form in the Declaration of the Rights of Man and Citizen in 1789, which states that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law” (Yale Law Library, “Declaration of the Rights of Man – 1789”, 2008). These early expressions of the law include important things – that the government cannot restrict it, but most agreed that there are circumstances where free expression does not apply.
To understand the idea of free expression, it is important to understand accepted exceptions to the expressed First Amendment right. Among these, the government has permitted laws which prohibit certain types of speech in specific times, places, and locations – such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property” (O’Neill, “Time, Place, Manner Restrictions”). Any restriction of this kind has to pass “a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989)…The regulation must be content neutral…It must be narrowly tailored to serve a significant governmental interest…It must leave open ample alternative channels for communicating the speaker’s message.” In this case, the Supreme Court ruled that New York City officials could control the volume of amplified music at rock concerts in Central Park without violating the First Amendment” (Hudson, “Ward v. Rock against Racism, 2009). The government may also restrict speech which falls into the categories of “incitement, defamation…obscenity, child pornography…and threats” (Volokh, “Permissible Restrictions on Expression”, 2023). The Supreme Court ruled on restrictions of incitement – defined as “speech [that] is forbidden because it incites, or is likely to lead to, violence or illegal actions” – in the landmark decision in Brandenburg v Ohio (Vile, “Incitement to Imminent Lawless Action”, 2009). In this case, Brandenburg, a member of the KKK, was convicted under Ohio law for statements that “alluded to the possibility of “revengeance” (sic) in the event that the federal government and Court continued to “‘suppress the white, Caucasian race.” The Supreme Court overturned the conviction and held that “advocacy could be punished only ‘where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Walker, “Brandenburg v Ohio”, 2009). The second exception to free expression is defamation. Defamation deals with two types of tort action “that encompasses false statements of fact that harm another’s reputation”: libel and slander. Libel “generally refers to written defamation, while slander refers to oral defamation, though much spoken speech that has a written transcript also falls under the rubric of libel.” In New York Times Co. v Sullivan, the New York Times published an article with factual errors about protests occurring in Alabama. In the case, “The Court reasoned that ‘erroneous statement is inevitable in free debate’ and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court also established what has come to be known as ‘the actual malice rule’.” This rule says that the offended party “must prove by clear and convincing evidence that the speaker made the false statement with ‘actual malice’ — defined as ‘knowledge that it was false or with reckless disregard of whether it was false or not’” (Hudson, “Defamation”, 2020). The third and fourth exceptions are obscenity and child pornography. Obscenity “refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value” (Hudson, “Obscenity and Pornography”, 2009). The test for obscenity comes from Miller v California, a case where “the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials.” The test in this case has three parts: “‘Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value’” (Hudson, “Miller v. California”, 2009). The last exception to the first amendment is true threats. The test case for this exception is Virginia v Black, where a statute banning crossburning was upheld in the state of Virginia. The court’s reasoning was “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death’” (O’Neill, “True Threats”, 2017). These exceptions to the first amendment illustrate that the right is not absolute in American jurisprudence, and the intent and manner of the speech – as illustrated above – weighs heavily in whether or not it is permissible.
References:
“The Bill of Rights: A Transcription.” 2023. National Archives and Records Administration. National Archives and Records Administration. April 21. https://www.archives.gov/founding-docs/bill-of-rights-transcript#:~:text=Amendment%20I-,Congress%20shall%20make%20no%20law%20respecting%20an%20establishment%20of%20religion,for%20a%20redress%20of%20grievances.
Cascone, Sarah. 2021. “Archaeologists Have Discovered a Pristine 45,000-Year-Old Cave Painting of a Pig That May Be the Oldest Artwork in the World.” Artnet News. December 9. https://news.artnet.com/art-world/indonesia-pig-art-oldest-painting-1937110#:~:text=Archaeologists%20believe%20they%20have%20discovered,at%20least%2045%2C500%20years%20ago.
David L. Hudson, Jr. 2020. Defamation. May 14. https://mtsu.edu/first-amendment/article/1812/defamation.
“Declaration of the Rights of Man - 1789.” 2008. Yale Law School Lillian Goldman Law Library - The Avalon Project. https://avalon.law.yale.edu/18th_century/rightsof.asp.
“History of Free Speech.” 2022. The Foundation for Individual Rights and Expression. https://www.thefire.org/history-free-speech#timeline--23542--2.
Hudson, David L. 2009a. “Obscenity and Pornography.” Obscenity and Pornography. https://mtsu.edu/first-amendment/article/1004/obscenity-and-pornography.
Hudson, David L. 2009b. “Ward v. Rock against Racism.” Ward v. Rock against Racism. https://mtsu.edu/first-amendment/article/370/ward-v-rock-against-racism.
Hudson, David L. 2009c. Miller v. California. https://mtsu.edu/first-amendment/article/401/miller-v-california.
Konstan, David. 2012. “The Two Faces of Parrhêsia*: Free Speech and Self-Expression in Ancient Greece: Journal of the Australian Society for Classical Studies.” Proquest. Antichton. https://www.proquest.com/docview/1459226473?parentSessionId=2riArMLT%2B2G%2FrXHB8pHqr%2B%2FkAK%2FBkJYL8QsEw3yaHAg%3D&pq-origsite=primo&accountid=6167.
Locke, John. 1690. An Essay Concerning Human Understanding. PinkMonkey. https://pinkmonkey.com/dl/library1/book1284.pdf.
O’Neill, Kevin Francis. 2009. “Incitement to Imminent Lawless Action.” Incitement to Imminent Lawless Action. https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action.
O’Neill, Kevin Francis. 2009. “Time, Place and Manner Restrictions.” Time, Place and Manner Restrictions. https://mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.
O’Neill, Kevin Francis. 2017. “True Threats.” True Threats. https://mtsu.edu/first-amendment/article/1025/true-threats.
Peoples, Hervey C, Pavel Duda, and Frank W Marlowe. 2016. “Hunter-Gatherers and the Origins of Religion.” Human Nature (Hawthorne, N.Y.). U.S. National Library of Medicine. September. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4958132/.
Rickless, Samuel. 2020. “Locke on Freedom.” Stanford Encyclopedia of Philosophy. Stanford University. January 21. https://plato.stanford.edu/entries/locke-freedom/.
Saxonhouse, Arlene W. 2006. Free Speech and Democracy in Ancient Athens. EbscoHost. Cambridge: Cambridge University Press.
Vile, John R. 2009a. “English Bill of Rights.” English Bill of Rights. https://www.mtsu.edu/first-amendment/article/865/english-bill-of-rights#:~:text=The%20document%2C%20which%20initially%20came,U.S.%20Constitution%2C%20to%20members%20of.
Volokh, Eugene. 2023. “Permissible Restrictions on Expression.” Encyclopædia Britannica. Encyclopædia Britannica, inc. June 30. https://www.britannica.com/topic/First-Amendment/Permissible-restrictions-on-expression.
Voltaire, Frangois Marie, and David Williams. 1994. Political Writings. Cambridge University Press. Cambridge England: Cambridge University Press. https://doi.org/10.1017/CBO9781139170451.
Walker, James L. 2009. Brandenburg v. Ohio. https://mtsu.edu/first-amendment/article/189/brandenburg-v-ohio.
Debates and movements for the protection of freedom of expression are a recent development that “scarcely arose before the revolutions of the eighteenth century" (Zoller 2009, 803). But one can see that it is frequently in response to oppressive governmental measures that opposition arises to promote freedom of expression for democratic society and its citizens from external censorship. The intended outcome of these revolutions was to ensure the citizen’s right “to freely speak one's mind, represent one's viewpoint, defend one's opinions, communicate one's ideas… without fear for life, liberty, or possessions, but with peace of mind and a firm certainty of freedom from government harassment…” (Zoller 2009, 803). There are five notable historical movements and events that helped contribute to the widespread belief of freedom of expression as a fundamental right: the Enlightenment, The American and French Revolutions, the United Nations’ Universal Declaration of Human Rights, the fall of the Berlin Wall, and the Arab Spring.
THE ENLIGHTENMENT
The promotion of freedom of expression as a universal right was first established by the philosophes of the Enlightenment in the 17th and 18th centuries. Frederick of Prussia, Immanuel Kant, and Johann Gottlieb Fichte all wrote on the idea of freedom of expression, especially in how it relates to free thought and opinion. James Schmidt quoted Immanuel Kant in support of the claim that freedom of thought, however praiseworthy in its own right, is much more valuable when informed by the thoughts of others: “‘… but how much and how accurately would we think if we did not think, so to speak, in community with others to whom we communicate our thoughts and who communicate their thoughts to us!’” (Schmidt [quoting Kant] 1996, 30). Agreeing with this sentiment, Frederick of Prussia also expressed his wish “to rule over a noble, brave, freethinking people, a people that has the power and liberty to think and to act, to write and to speak, to win or to die” (Schmidt [quoting Frederick of Prussia] 1996, 89). At this point in history, freedom of expression, especially in a monarchical context, became a key component of Enlightenment thought, as it was determined that the right to possess and share one’s opinions was the mark of a civilized society.
THE AMERICAN AND FRENCH REVOLUTIONS
Building upon Enlightenment philosophies, freedom of expression (or the lack thereof) played central roles in the American and French Revolutions of the late 18th centuries. However, how freedom of expression was expressed in each case manifested very differently.
In America, "as taxes were imposed without their consent, colonists believed their freedom of expression and representation was violated. Protests, petitions, and gatherings were quickly put down by government officials. Freedom of expression, speech, and the press were punishable and denied to many" (Charkins et. Al 2019, 35). The repression of what the colonists believed to be a fundamental right only exacerbated the situation and eventually led them to demand “the formation of a government that would promise protection of those inherent liberties" via the American Revolution (Pomerance 2016, 112). After the war, this eventually prompted the ratification of the First Amendment to the Constitution that confirmed that “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” (U.S. Constitution, 1791).
Conversely, while American efforts came from an institutionalized lack of freedom, the French struggle came from a surprising decision from King Louis XVI. In 1789, when he called a meeting of the Estates General, he began by “suspending censorship of publications, even allowing writings that criticized the monarchy…" (Pomerance 2016, 114). This afforded French people freedom of expression to a degree they had never seen before, and soon newspapers and pamphlets across France were calling for a democratic overhaul of the whole country. This top-down decision from the King paved a slightly untraditional path to revolution, especially in contrast to the Americans who were denied freedom of expression from their government. Louis had opened the floodgates, and just months after the first meeting, “there was little doubt that free speech and expression were high on the list of demands from the Frenchmen calling for change” (Pomerance 2016, 117). These sentiments were eventually listed in the Declaration of the Rights of Man and of the Citizen, in Articles 10 and 11 which state that “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order,” and “the free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law" (“Declaration of the Rights of Man”).
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
International protections of fundamental rights did not emerge until the late 20th century in response to the “barbarous acts” of World War II (Amnesty International). And in response to these acts, it became a goal of the newly founded United Nations to set a global standard for freedom and justice for everyone, regardless of nationality or citizenship. The Universal Declaration of Human Rights (UDHR) was adopted in 1948 and establishes a comprehensive list of rights and liberties that everyone is entitled to. Freedom of expression is guaranteed by Article 19 which states that “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” (United Nations 1948). While the UDHR is not a legally binding document, it was the first international agreement focused on the protection of basic human rights and freedoms.
THE FALL OF THE BERLIN WALL
The fall of the Berlin Wall was a major turning point in the history of freedom of expression and its applications. During the Cold War, Europe was split between a democratic West and a communist East, with a physical manifestation of this divide erected in Berlin by the German Democratic Republic (East Germany). Many basic freedoms and liberties were suppressed in the Eastern Bloc, and “human rights violations in East Germany centered mainly on freedom of movement, expression and association” (Human Rights Watch 1989). Before the fall, “the potential to express dissidence… [marked] the border between East and West," but after, East Berliners used their restored freedoms to express their opinions without fear of retribution (Zoller 2009, 806). The fall of the Berlin Wall was a major win for universal human rights, and it marked the beginning of the end of the Cold War that inspired similar democratic movements across the Eastern Bloc that eventually led to the collapse of the Soviet Union.
THE ARAB SPRING
Applications of human rights and freedoms will have to continue to adapt to societal changes. As recently seen with the Arab Spring uprisings, widespread access to the internet and social media channels that now allow near total freedom of expression on a global scale has reshaped how one can utilize this freedom for the promotion of democracy, but it has also raised questions as to how parameters of this right should be drawn in instances of dangerous or harmful views. Before the rise of the internet, “discussions focused on the idea of what a man was allowed to utter or write when he found himself to be at odds with an established orthodoxy…", but now, it is imperative that “national legislations should envisage legal instruments to carefully limit its application (when abusive), in those situations in which free speech becomes an obstacle for the free exercise of other fundamental rights” as free speech and expression can be shared on an international level (Racolța 2019, 8, 15). Although freedom of expression is now an expected right of democratic societies, it remains at the forefront of international discussions to determine how to both ensure the right itself for people deprived of it and to also protect people from abuses of free expression.
References:
Charkins, Jim, Michelle Herczog, and Thomas Herman. “Breaking Down the Silos: The American Revolution--A Story Well Told.” Social Studies Review 58 (January 2019): 25–42. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=eft&AN=154271093&site=ehost-live&scope=site.
“Declaration of the Rights of Man.” Avalon Project. Accessed June 16, 2023. https://avalon.law.yale.edu/18th_century/rightsof.asp.
“EAST GERMANY.” Human Rights Watch World Report, 1989. https://www.hrw.org/reports/1989/WR89/Eastgerm.htm.
Pomerance, Benjamin. “First In, First Out: Promises and Problems of Free Expression in Revolutionary and Post-Revolutionary Governments.” Maryland Journal of International Law 31, no. 1 (January 2016): 107–79. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=122460887&site=ehost-live&scope=site.
Racolța, Remus, and Andreea Verteș-Olteanu. 2019. “Freedom of Expression. Some Considerations for the Digital Age.” Jus et Civitas VI (LXX) (1): 7–16. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=139539130&site=ehost-live&scope=site.
Schmidt, James. What Is Enlightenment?: Eighteenth-Century Answers and Twentieth-Century Questions. Philosophical Traditions. Berkeley: University of California Press, 1996. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=nlebk&AN=4657&site=ehost-live&scope=site.
“Universal Declaration of Human Rights.” Amnesty International, April 11, 2023. https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/#:~:text=The%20UDHR%20was%20adopted%20by,for%20freedom%2C%20justice%20and%20peace.
United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations General Assembly, 1948.
Zoller, Elisabeth. "Foreword: Freedom of Expression: Precious Right in Europe, Sacred Right in the United States," Indiana Law Journal 84, no. 3 (Summer 2009): 803-808
The Universal Declaration of Human Rights, a document adopted by the United Nations General Assembly in December of 1948, recognized freedom of expression as a universal human right, inherent and applicable to all individuals. A milestone declaration, it has subsequently influenced countless state constitutions, treaties, and legal codes, defining the right as including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UN General Assembly 1948, 5). Though a majority of nations grant freedom of expression to their constituents in a formal capacity, there are often discrepancies in the way they are practiced and protected, as well as interpreted, in part because of a country’s history, political philosophy, and social factors. Some states are more restrictive of expression, prohibiting or discouraging acts and speech that reflect negatively on the nation’s religion, regime, or culture, while others safeguard this form of expression. Nearly all have censorship laws in place that touch upon defamation and libel, hate speech, and obscenities, though with varying degrees of consequences and protection.
Nations with strong secular traditions, such as France, allow for criticisms and negative portrayals of religion under the right to freedom of expression, while theocratic states, like Iran and Pakistan, completely restrict it under threat of punishment. Freedom of expression has been a fundamental right for French citizens since the proclamation of the Declaration of the Rights of Man and of the Citizen in 1789, which provided a “limited freedom of expression whose scope is defined by law,” leaving it up to legislators to establish those limits (Guedj 2021, 1). The right was redefined by the Law on the Freedom of the Press of 1881, which reemphasized the public’s ability to express itself while forbidding libel, defamation, offence to public decency and provocations to crimes, among others, and then again with the Pleven Act of 1972 and the Gayssot Act, which prohibited incitement to racial/religious hatred and Holocaust denial respectively (Colosimo 2018, 2). Those who violate these laws can be subject to fines or imprisonment. However, under France’s legislature, it is “possible to insult a religion, its figures and symbols,” as long as it does not incite violence or “insult members of a religion” for belonging to that faith (Colosimo 2018, 2). Though the lines between the two can be blurry, the right to freedom of expression in France is quite liberal when it comes to discussion around religion and allows for acts of expression that go against theological doctrine and criticize it.
There are several theocratic states that have provisions within their legal framework that also guarantee freedom of expression, though they heavily restrict it through strict anti-blasphemy laws that prohibit any act or speech that can be perceived as negative by governmental authorities and carry punishments. Article 24 of Iran’s constitution states, “Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law” (“Islamic Republic of Iran” 2023, 14). Pakistan has a similar provision in its constitution with Article 19: "Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, committing, or inciting an offence" (Pakistan Constitution, ch. 1, art. 19). While Iran and Pakistan do have a legal freedom of expression, they restrict it, with the international non-profit organization Reporters Without Borders (RWB) citing various cases in which they censored and filtered what is put online and “punished citizens for statements that were considered blasphemous” (“2023 World Press Freedom Index” 2023, 5). Restrictions of expressions on religion are not only enforced in theocratic countries, however, as Finland forbids breaching the sanctity of religion “which includes ‘blaspheming against God,’ publicly defaming or desecrating to offend something a religious community holds sacred, and disturbing worship or funeral ceremonies” with violators being subject to “fines or imprisonment of up to six months” (“Finland 2021 Report” 2021, 3).
Thailand, a constitutional monarchy, guaranteed freedom of expression to its citizens since the 1997 Constitution of Thailand and continues to guarantee it with the various different constitutions that have followed since, though it has a distinct interpretation of the right when it comes to the royal family. Thailand’s government is very restrictive of the way citizens can partake in this right, particularly with its strict lèse-majesté laws, seen as one of the harshest in the world. Lèse-majesté is an offence against the dignity of a ruling head of state, an act that is prohibited under Thailand’s legal code which states, “Whoever defames, insults, or threatens the King, the Queen, the Heir to the Throne, or the Regent, will be punished with a jail sentence between three and fifteen years.” (Mérieau 2021, 77). The state’s right to freedom of expression does not cover speech or acts that are deemed negative towards the monarchy, with the law being considered ambiguous and open to the interpretation of authorities. This distinct interpretation of freedom of expression derives from the influence of Hindu-Buddhist culture in Thailand where kings were seen as divine figures to be respected, giving them a form of sanctity that left a lasting impact on the country’s political system (Mérieau 2021, 78). Other states that interpret freedom of expression in a similar way include Turkey, where it is illegal under Article 301 of the country’s penal code to insult the Turkish nation, its government, and its national heroes under threat of imprisonment (“Turkey: Article 301” 2006, 1).
Saudi Arabia, holds freedom of expression to a different status than the previously mentioned states, failing to articulate it in its law but still penalizing acts of expression that are deemed blasphemous or portray the regime in a negative light, with punishments ranging from hefty fines to death sentences. Saudi Arabia’s Basic Law of Governance, the country’s constitution-like charter, does not provide for freedom of expression or the press, simply stating, "Mass media and all other vehicles of expression shall employ civil and polite language, contribute towards the education of the nation, and strengthen unity. The media are prohibited from committing acts that lead to disorder and division, affect the security of the state or its public relations, or undermine human dignity and rights” (U.S. Department of State 2018, 23). This gives authorities ample power to determine what expression violates the law, placing heavy emphasis on the safeguarding of religious values and morals. A distinct feature of freedom of expression in the United States that differentiates it from many other nations is that certain hate speech is protected under the First Amendment. In the United States, “hate speech is given wide constitutional protection while under international human rights covenants and in other Western democracies, such as Canada, Germany, and the United Kingdom, it is largely prohibited and subjected to criminal sanctions” (Rosenfeld 2002, 1523). This was reaffirmed in the 2017 U.S. Supreme Court Case Matal v. Tam, in which the justices determined that hate speech falls under the protection of free speech: “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” (2). The expression may be subject to punishment if it seeks to incite an imminent violent or lawless action This is quite a different interpretation than many other democratic nations, where expressions that are considered hate speech can be punishable by law. In Germany, for example, acts of expression that are racist, antisemitic, advocating for Nazism, denying the Holocaust, or glorifying the ideology of Hitler are illegal (“Germany: Freedom in the World” 2023, 9).
The right to freedom of expression is recognized as a fundamental human right that applies to all individuals by the United Nations, being adopted and incorporated into the legal code or constitutions of a majority of states around the world. The right differs, however, in its interpretation and practice within each individual country, as well as the extent to which it is protected. Some states interpret freedom of expression through a more restrictive lens, prohibiting negative acts of expression that touch upon religion, government, or culture, while others allow it with more lenient limitations. A state’s interpretation of freedom of expression can be influenced by its unique history, its political climate, as well as social and religious factors, resulting in different interpretations and practices of freedom of expression around the world.
References:
“2023 World Press Freedom Index – Journalism Threatened by Fake Content Industry.”
2023. RSF. Accessed June 14. https://rsf.org/en/2023-world-press-freedom-index-
journalism-threatened-fake-content-industry.
Colosimo, Anastasia. 2018. “Blasphemy in France and in Europe: A Right or an Offense?”
Institut Montaigne. November 16. https://www.institutmontaigne.org/en/expressions
“Finland 2021 International Religious Freedom Report.” 2023. U.S. Department of State.
https://www.state.gov/wp-content/uploads/2022/04/FINLAND-2021
“Germany: Freedom in the World 2022 Country Report.” 2023. Freedom House. Accessed June
9. https://freedomhouse.org/country/germany/freedom-world/2022.
Guedj, Nikita. 2021. “The Law on the Freedom of the Press of 29 July 1881: A Text That Both
Guarantees and Restricts Freedom of Expression.” Fondation Descartes. July 16.
https://www.fondationdescartes.org/en/2021/07/the-law-on-the-freedom-of-the-press-of-
29-july-1881-a-text-that-both-guarantees-and-restricts-freedom-of-expression/.
“Islamic Republic of Iran 1979 (Rev. 1989) Constitution.” 1989. Constitute.
https://www.constituteproject.org/constitution/Iran_1989?lang=en.
Matal, Interim Director, United States Patent and Trademark Office v. Tam. 582 U.S. (2027)
Mérieau, E. 2021. “A History of the Thai lèse-majesté Law”. Thai Legal History: From
Traditional to Modern Law, 60-70.
Rosenfeld, Michel. 2002. “Hate speech in constitutional jurisprudence: a comparative analysis.”
Cardozo L. Rev., 24, 1523.
“Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ Is an Insult to Free
Expression.” 2006. Amnesty International. March 1.
https://www.amnesty.org/en/documents/eur44/003/2006/en/.
UN General Assembly. 1948. Universal Declaration of Human Rights, , 217 A (III),
https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
U.S Department of State. 2018. Country Reports on Human Rights Practices for 2017: Saudi
Arabia.
The right to freedom of expression is not necessarily qualified as a protected human right in each country or sovereign government. Rather, it is a global human right, as stated in Act 19 of the Universal Declaration of Human Rights; “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas through any media and regardless of frontiers.” (Civic, 1997, pg. 129). Within this declaration, a few key factors are revealed that are related to how the freedom of expression is exercised as a legally recognized right. First, expression is acknowledged as being equal to opinions; they are both very imperative when it comes to human rights and the exercise of freedom of expression. Without the acknowledgment of the inherent significance of freedom of expression in a group context or collective capacity, such as protections under the Constitution, the full exercise of the right will not be achieved without an elevated form of protection placed on it. “Therefore, naked freedom of expression, without some common sense or good community sense infused into it, ultimately will fail to protect the individual as a member of the community, by its total disregard for the needs of the society… Thus, while freedom of expression is essential to human dignity, additionally, for the ultimate good of the individual as a member of society, such freedom must be exercised responsibly and with a recognition of the integral relationship the autonomous self has with the greater society.” (Civic, 1997, pg.143). Although many different governments and nations recognize the significance of freedom of expression, they may not agree with the outcome of fully exercising this right for all citizens. Along those lines, when protections for freedom of expression are not present within a country or society, the full capacity for citizens to freely express their ideas and thoughts in an individual or community context will subsequently be stifled. The difference between protections of ‘freedom of expression’ and ‘freedom of speech’ is determined by the way that somebody voices or expresses an idea or opinion. Protections under the freedom of speech may be determined by the words themselves that are used, but the expression is conveyed through action, and moreover what a person is trying to show with that action. “The terms ‘expression’ and ‘action’ are functional ones, rooted in the fundamental character of a system of free expression and in the factors necessary to maintain its effective operation. Hence it is clear that the term ‘expression’ must include more than the mere utterance of words or other forms of communication. It must embrace a surrounding area of conduct closely related to the making of the utterance or necessary to make it effective.” (Emerson, 1964, pg. 24-25). Thomas Scanlon analyzed the theoretical significance of how freedom of expression is positioned between protected acts and the consequences of exercising this right. “The most common defense of the doctrine of freedom of expression is a consequential one. This may take the form of arguing with respect to a certain class of acts, e.g., acts of speech, that the good consequences of allowing such acts to go unrestricted outweigh the bad. Alternatively, the boundaries of the class of protected acts may themselves be defined by balancing good consequences against bad, the question of whether a certain species of acts belong to the private genus being decided in many is not all cases just by asking whether its inclusion would, on the whole, lead to more good consequences than bad.” (Scanlon, 1972, pg. 204-5). Within this analysis, the reflection of the significance of intention comes to light, where there is negative or malicious intent, protections remain absent under freedom of expression. One cannot use freedom of expression to instill violence, or suppression, but rather as a way to exude an opinion or idea that does not push these limitations under legal precedent. “However, since acts of expression can be both violent and arbitrarily destructive, it seems unlikely that anyone would maintain that as a class they were immune from legal restrictions. Thus the class of protected acts must be some proper subset of this class. It is sometimes held that the relevant subclass consists of those acts of expression which are instances of ‘speech’ as ‘opposed to action’.” (Scanlon, 1972, pg. 207). Freedom of speech differs inherently from the freedom of expression based on an action directive, a person can say something that goes against the government’s prerogative and not face legal consequences, but upon acting to overthrow or dismantle that government, the protection of expression does not extend to ‘fighting’ actions or malicious acts. This theorizing under the freedom of expression justly points out the differences between American protections of expression under democracy, versus a more autocratic regime that aligns itself with dictatorships or communist ideologies. For example, in the People’s Republic of China, a socialist democracy under the legal definition, the government chooses to remain neutral upon expression protections unless they conflict with the individualistic ideology of communal support. “The Communist perspective on free speech, by contrast, assigns absolute priority to the well-being of the community, and in so doing, sacrifices individual freedom of expression.” (Civic, 1997, pg. 127). Under the People’s Republic of China’s legal provisions, freedom of expression is intertwined with freedom of speech. “Speech and other forms of expression must be internally, as well as externally, restrained to serve all of the people [under the ideology of Communism]…Thus, the Chinese perception of free speech in particular, and human rights in general, is propelled by Communist ideology which emphasizes the interests of the community at the expense of individual interests. Finally, the ‘rights’ of the individual are defined relative to his duties to the community, and are subjected to qualification, restriction, and repression for community interests, as defined by the Communist Party elite.” (Civic, 1997, pg. 128). The gray area that is ‘freedom of expression’ within the ideology of Communism conflicts with the obvious reality of actually having protections of freedom of expression. Where there is no protection, there is a lack of freedom to act upon an idea or opinion. Although the freedom of expression is distinguishable from the freedom of speech, they are communally intertwined under the Communist ideology. Freedom of expression must serve to fit the relative overall needs of the community in the PRC through their freedom of speech, otherwise, it does not qualify legally as protection of freedom of expression.
References:
Civic, Melanne Andromecca. "Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection within All Nations and across All Borders." In Hybrid, vol. 4, p. 117. 1997
Emerson, Thomas I. "Freedom of Association and Freedom of Expression." The Yale Law Journal 74, no. 1 (1964): 1-35.
Scanlon, Thomas. "A theory of freedom of expression." Philosophy & Public Affairs (1972): 204-226
([[Probable year:: 1972]]) : 204-226
According to Pew Research, majorities in Australia, Turkey, the Philippines, Ukraine, South Africa and Nigeria report that it is important to have free press, an essential element of freedom of expression. Freedom of the press is considered very important by less than half of adults in South Korea, Japan, Israel, Indonesia, Russia, India, Tunisia and Lebanon, revealing these societies possibly place less of an emphasis on freedom of expression. Furthermore, Pew notes that despite the fact that freedom of the press has declined since [[Probable year:: 2015]], support for freedom of the press has increased overall. This demonstrates that individuals value freedom of expression greater when it becomes limited. Additionally, according to Pew people with less education and people with populist views are less likely to assert freedom of the press to be important.
Focusing on the United States, a Cato Institute study showed 58% of Americans felt that the current political climate keeps them from expressing themselves. Within this statistic, 53% of Democrats say they do not need to censor themselves in comparison to 27% of Republicans and 42% of Independents. This demonstrates that among Americans, Republicans particularly feel their right to free expression is limited by certain social and political norms, as they feel the need to restrict their speech. In regards to hate speech, despite the fact that 79% of Americans find it “morally unacceptable”, the Cato study reveals 59% of Americans believe it should be allowed in the public. Analyzing these numbers, the study claims, “the public appears to distinguish between allowing offensive speech and endorsing it.” Additionally, the study asserts that 66% of Americans believe colleges need to do more to teach Americans about the value of free speech, emphasizing that Americans highly value freedom of expression.
Looking to college campuses, a [[Probable year:: 2017]] Gallup poll found that 61% of college students strongly agreed that their campus climate prevents people from saying the things they believe. This was up seven percentage points from [[Probable year:: 2016]], when Gallup previously surveyed students. A reversal from [[Probable year:: 2016]], Democrats and Independents were more likely than Republican students to believe their college environment limited their ability to speak freely. Lastly, the study found that a smaller majority of students polled preferred a campus where all speech was allowed, demonstrating that students' value of free speech on campus has declined.
An additional Pew study found that globally, a median of 62% of individuals say their country protects individual freedom of expression. Furthermore, the study found that individuals in countries with advanced economies were more likely to report that their country supported freedom of expression than individuals in countries with emerging economies. In Brazil, Spain, Argentina, Italy and Mexico, more than 50% of surveyed individuals stated they did not agree with the statement that their country supports freedom of expression. Specifically, Brazil reported very low numbers for freedom of expression, 39% saying their country does not support free expression at all. Within Europe, individuals in countries with favorable populist parties, such as Sweden, were additionally less likely to report that freedom of expression was protected by their government.
References:
Emily Ekins, The Cato Institute, "The State of Free Speech and Tolerance in America," October 31, 2017: https://www.cato.org/survey-reports/state-free-speech-tolerance-america
Aidan Connaughton, Pew Research Center, "5 charts on views of press freedom around the world", May 1 2020: https://www.pewresearch.org/short-reads/2020/05/01/5-charts-on-views-of-press-freedom-around-the-world/
Jeffrey M. Jones, Gallup,"More U.S. College Students Say Campus Climate Deters Speech," March 12, 2018, https://news.gallup.com/poll/229085/college-students-say-campus-climate-deters-speech.aspx
Richard Wike, Laura Silver, and Alexandra Castillo, Pew Research Center, "Publics satisfied with free speech, ability to improve living standards; many are critical of institutions, politicians," April 29, 2019, https://www.pewresearch.org/global/2019/04/29/publics-satisfied-with-free-speech-ability-to-improve-living-standards-many-are-critical-of-institutions-politicians/
Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion.
Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “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” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10).
Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302).
Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights.
Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right.
The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression.
In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927).
The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395).
Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413).
Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporated this right to the states for the first time). In its ruling, the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299).
The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993).
In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12).
While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist.
References:
Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023)
Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023)
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023)
Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023)
De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023)
International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf
Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023)
Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf
Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023)
Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf
Palko v. Connecticut, 302 U.S. 319 (1937), Justia, https://supreme.justia.com/cases/federal/us/302/319/ (accessed June 9, 2023)
Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023)
Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023)
Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023)
Stromberg v. California, 283 U.S. 359 (1931), Justia, https://supreme.justia.com/cases/federal/us/283/359/ (accessed June 9, 2023)
Universal Declaration of Human Rights, 1948, United Nations, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
Whitney v. California, 274 U.S. 357 (1927), Justia, https://supreme.justia.com/cases/federal/us/274/357/ (accessed June 9, 2023)
Wisconsin v. Yoder, 406 U.S. 205 (1972), Justia, https://supreme.justia.com/cases/federal/us/406/205/ (accessed June 9, 2023)
Freedom of expression is a relatively new term, however, not a new concept. For much of its history, the individual freedoms covered under freedom of expression were established in isolated contexts throughout time and eventually translated into this overarching concept of freedom of expression. The identification of this freedom is a product of many contributions over several centuries, resulting in associations to multiple eras and contributors: yet remaining limited to being a fundamental element of democratic regimes. The composition of freedom of expression possesses two elements associated with the present-day interpretation. The first element is the origins of the foundational freedoms covered under the overall “Freedom of expression.” The second element is the transition from individual freedoms to the broader notion of expression.
Today, it is universally understood that freedom of expression includes freedom of speech and freedom of the press. While freedom of speech has origins in ancient Greece through the concept of Parrhêsia, (Konstan, 2012, 1), freedom of the press and expression have a significant concrete appearance through the works of John Milton in Areopagitica(1644). In the book Free Speech and Democracy in Ancient Athens, Arlene Saxonhouse discusses how Milton “Protests the licensing of books and the governmental restraints thereby placed on free expression in published works… Milton argues in a series of allusions to the world of ancient Athens, tying Milton to the values expressed by the ancient Athenian, connecting freedom of speech to human virtue and political freedom’’ (Saxonhouse 2005, 20).
The next significant development to freedom of expression was the ratification of the Bill of Rights into the U.S. Constitution; a document that drew inspiration from the English Magna Carta (1215). Although the Magna Carta did not explicitly mention free speech, it did guarantee certain liberties that would be conceptualized into modern democracy and go on to inspire the Bill of Rights, i.e The First Amendment (WEX Definitions Team, 2020). Thus, The First Amendment became an important development in what would come to be called freedom of expression. However, it wouldn't be until 1948 that “freedom of expression” was officially coined and universally recognized. Following World War II, freedom of information was declared a fundamental human right but the language of “freedom of expression” was not agreed upon until it was drafted and entered into the Universal Declaration of Human Rights in 1948 by an American committee (Kleinwächter, 2022). Between The First Amendment and Universal Declaration of Human Rights, innovations such as the telegraph and radio broadcasting proposed new obstacles to information sharing beyond borders. This led to multiple treaties and conventions discussing the censoring of content shared internationally, thus challenging freedom of speech and press, however, no explicit mention of freedom of expression was mentioned in these international treaties(Kleinwächter, 2022). Article 19 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of opinion and expression; this includes the right to hold opinions without interference and to seek, receive, and impart information through any media regardless of frontiers.” It was here that the individual freedoms within the First Amendment translated into the united concept of “freedom of expression” and then became internationally recognized into law through the International Covenant on Civil and Political Rights in 1966 with the same language used in Article 19 (Kleinwächter, 2022). With a long evolution and multiple developments contributing to the concept today, the identification of this freedom is not limited to a single era, but rather significant to several. ..
The associations of these eras parallel the significance of the identification of this freedom in relation to a specific type of regime. These dates, as well as the overall notion of this freedom, are important to the development and expansion of democracy and democratic institutions. This element of democracy facilitates open debate, proper consideration of different perspectives, and the negotiation and compromise necessary for consensual policy decisions (Freedom House, 2023). Without this freedom, true democracy would not exist as “the suppression of ideas is inconsistent with the concept that a democratic society bases its decisions on full and open discussion of all points of view (Bogen, 1983, 464).” Expressing content or discontent for a government, policy, or principle, as well as proposing solutions or critiques, amongst expressions of other topics, allows for the democratic process to function for its intended purpose and is profoundly within the right of an individual to do so as a protected human right.
Unlike the association to a single regime type, this freedom is not limited to a single political leader. Instead, multiple figures, often not in positions of leadership, opposed the censoring of opinions and ideas, and acted as the main contributors to the expansion of freedom of expression. Those who drafted the Magna Carta opposed the monarchy of King John; Milton opposed government censorship, and the Framers of the Constitution opposed absolute power by a single ruler. All of these developments over time resulted in the association to several contributors who led us to the contemporary understanding of this freedom. This long evolutionary process with collaborative efforts from key points and figures throughout history has resulted in the identification of this right being tied to multiple eras and figures, yet to only one regime type.
References:
Konstan, David. 2012. “The Two Faces of Parrhêsia: Free Speech and Self-Expression in Ancient Greece.” Antichthon 46. Cambridge University Press: 1–13. doi:10.1017/S0066477400000125.
Saxonhouse, Arlene W. 2005. Free Speech and Democracy in Ancient Athens. Cambridge University Press. 11-37
WEX Definitions Team. 2020 “Magna Carta.” LII / Legal Information Institute. https://www.law.cornell.edu/wex/magna_carta#:~:text=The%20writers%20of%20the%20Bill.
Bogen, David S. 1983. “The Origins of Freedom of Speech and Press” 42. Maryland Law Review. 429-465.
https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2503&context=mlr
Freedom House. “Freedom of Expression.” 2023. https://freedomhouse.org/issues/freedom-expression
Kleinwächter, Wolfgang. 2022. “A History of the Right to Freedom of Expression.” Observer Research Foundation. https://www.orfonline.org/expert-speak/a-history-of-the-right-to-freedom-of-expression/
In some cases, governments have curtailed freedom of expression for reasons that are not generally seen as permissible by the standards of the United States.
As noted by Professor Jérôme Viala-Gaudefroy, not all types of expression are protected under US law. Those involving “obscenity, fraud, child pornography, harassment, incitement of illegal conduct and imminent lawless action, true threats, and commercial speech such as advertising, copyright or patent rights” (Viala-Gaudefroy 2021) can be restricted, among others. That said, there have been instances within the US where the right was curtailed for a reason not listed above. These justifications, therefore, would be viewed as non-permissible restrictions on freedom of expression.
The Minnesota state legislature passed a statute that barred voters and other individuals from wearing political apparel and accessories inside a polling place on election day, which included a “political badge, political button, or other political insignia” (Minnesota Voters Alliance v. Mansky 2018, 1). The legislation was meant to create “an island of calm in which voters [could] peacefully contemplate their choices” (Minnesota Voters Alliance v. Mansky 2018, 11), essentially eliminating disruptions at the polling place. However, the ban was challenged by the Minnesota Voters Alliance (MVA) and other individual plaintiffs, who argued that it violated their first amendment rights “both on its face and as applied to their particular items of apparel” (Minnesota Voters Alliance v. Mansky 2018, 1). The Supreme Court agreed with the general sentiments of the Minnesota law, stating that “casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction (Minnesota Voters Alliance v. Mansky 2018, 11). However, the body ruled in favor of the MVA, explaining that the legislation was too broad and muddled - “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out… the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test” (Minnesota Voters Alliance v. Mansky 2018, 12-13). The state’s ban on expression within polling places was thus not deemed permissible.
Similar to US law, the European Convention on Human Rights does not protect all types of expression. Article 10 of the document clearly states that the right can be restricted when “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 reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Council of Europe 1950, 12). However, what a country believes is a necessary restriction on one of these grounds does not necessarily match up with the opinion of the European Court of Human Rights, which has the final say on what types of expression are permissible.
In 2005, journalist Eynulla Fatullayev, an Azerbaijani national, visited Nagorno-Karabakh, a region that has been the subject of a territorial dispute between Armenia and Azerbaijan and at the time was controlled by Armenian military forces. Fatullayev interviewed both locals and officials during his visit, as well as some Azerbaijani refugees who had fled the region, which he then published the following year. In his piece, Fatullayev claimed that during the Nagorno-Karabakh war in 1992, civilians “had been mutilated by [their] own” (Fatullayev v. Azerbaijan 2010, 4) Azerbaijani forces as they attempted to flee the region, among other statements. Upon reading the article, a group filed a criminal complaint against Fatullayev, asking that he “be convicted of defamation and of falsely accusing Azerbaijani soldiers of having committed an especially grave crime” (Fatullayev v. Azerbaijan 2010, 5). Fatullayev was later convicted of these crimes, as well as of terrorism or the threat of terrorism for another article he had published which appeared to address Iranian-Azerbaijani relations and threaten ethnic conflict. As a citizen of a country that signed the European Convention on Human Rights (hereby known as“the Convention”), Fatullayev was able to appeal his convictions to the European Court on Human Rights (“the Court”) on the grounds that his right to freedom of expression as defined by Article 10 of the Convention had been violated. The Court sided with the applicant, saying that he was presenting a set of opinions in a debate and did not seek to defame or act maliciously towards the victims and actors involved in the war, and thus was not abusing their rights. Additionally, the Azerbaijani government’s interference was not “necessary in a democratic society” or “a pressing social need” (Fatullayev v. Azerbaijan 2010, 22). Therefore, the body concluded “that the statements that gave rise to the applicant's conviction did not amount to any activity infringing the essence of the values underlying the Convention or calculated to destroy or restrict the rights and freedoms guaranteed by it…the applicant's freedom of expression cannot be removed from the protection of Article 10” (Fatullayev v. Azerbaijan 2010, 22). By the Court’s standards, then, Azerbaijan’s attempt to inhibit the applicant’s freedom of expression was unacceptable.
References
Council of Europe. 1950. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. https://www.echr.coe.int/documents/convention_eng.pdf
Fatullayev v. Azerbaijan, Application no. 40984/07, ECtHR judgment of 4 October 2010.
https://hudoc.echr.coe.int/fre?i=001-216685
Minnesota Voters Alliance v. Mansky, 849 F. 3d 749 (2018). https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf
Viala-Gaudefroy, Jérôme. 2021. “The Idolization of Free Speech in the United States.” The Conversation, February 22, 2021. https://theconversation.com/the-idolization-of-free-speech-in-the-united-states-155778#:~:text=Free%20speech%20is%20not%20absolute,advertising%2C%20copyright%20or%20patent%20rights
Article 31 of the 1964 Afghanistan Constitution states that “every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution” (University of Nebraska, “Constitution of Afghanistan,” 1964) .
In Afghanistan's [[Probable year:: 2004]] constitution Article 34 explicitly protects the freedom of expression. With every Afghan having the right to “express through speech, writing, illustrations as well as other means in accordance with the provisions of the constitution.”
References:
1964 Afghanistan Constitution: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=afghanenglish
2004 Afghanistan Constitution: https://www.constituteproject.org/constitution/Afghanistan_2004?%20lang=en +
Article 197 of the 1928 Fundamental Statute of the Kingdom of Albania guaranteed freedom of speech in peacetime under ordinary circumstance, but left room for exceptions in wartime or under extraordinary conditions. Freedom of speech was also asserted in Article 53 of the 1976 Constitution. Article 22 of the 1998 Albanian constitution guarantees the freedom of expression.
References:
1928 Fundamental Statute of the Kingdom of Albania: https://www.hoelseth.com/royalty/albania/albconst19281201.html
Albania Constitution (1976): https://data.globalcit.eu/NationalDB/docs/ALB%20The%20Constitution%20of%20the%20Peoples%20Socialist%20Republic%20of%20Albania%201976.pdf
Albania Constitution (1998): “Albania 1998 (Rev. 2016) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Albania_2016?lang=en. +
Article 19 of the 1963 Algerian Constitution states that “the Republic guarantees freedom of the press and of other means of information, freedom of association, freedom of speech and public intervention, and freedom of assembly”
Freedom of expression is currently guaranteed by the 52nd article of the 2020 Algeria constitution.
References:
“The Algerian Constitution.” The Middle East journal 17, no. 4 (1963): 446–450.
“Algeria 2020 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Algeria_2020?lang=en. +
The Andorran constitution ensures freedom of expression and the freedom to share information in the 12th article of their constitution. This right was codified in 1993 and includes a prohibition on public censorship.
“Andorra 1993 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Andorra_1993?lang=en. +
Article 22 of the 1975 Angolan Constitution states: "Within the framework of the realization of the basic objectives of the People's Republic of Angola, the law will ensure freedom of expression, assembly, and association."
Freedom of expression is asserted in the 1992 Angola constitution, part II, article 32: "Freedom of expression, assembly, demonstration and all other forms of expression shall be guaranteed."
Under chapter two, article 31-32 of the 2010 Angolan Constitution, freedom of expression is guaranteed along with other civil rights and freedoms considered fundamental.
References:
1975 Angola Constitution: “The Constitution of the People’s Republic of Angola.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.journals/rsl2&i=197
1992 Angola Constitution: https://constitutionnet.org/sites/default/files/Angola%20Constitution.pdf
2010 Angola Constitution: Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Angola_2010?lang=en. +
In Antigua and Barbuda the 1981 constitutions second chapter offers a broad variety of protections. They range from the freedom of expression to the protection from discrimination on the grounds of race.
References:
“Republic of Antigua and Barbuda / República Del Antigua y Barbuda Constitution of 1981 Constituciones De 1981.” Antigua and Barbuda: Constitution, 1981: https://pdba.georgetown.edu/Constitutions/Antigua/antigua-barbuda.html. +
In Argentina the 1853 constitution laid the groundwork for freedom of expression. "Freedom of speech, although not expressly granted by the Argentine Constitution as it is in the Constitution of the United States, is nevertheless impliedly recognized in Article 14, which guarantees freedom of the press and which provides that all inhabitants of the nation have the right to publish their ideas through the press without previous censorship; and in Article 33, which provides that the declarations, rights, and guarantees enumerated in the Constitution shall not be considered a denial of other rights and guarantees not enumerated but which arise from the principle of the sovereignty of the people and of the republican form of government." (Amadeo, 186-187)
References:
Amadeo, Santos P.. Argentine Constitutional Law: The Judicial Function in the Maintenance of the Federal System and the Preservation of Individual Rights. New York Chichester, West Sussex: Columbia University Press, 1943. https://doi-org.proxygw.wrlc.org/10.7312/amad90398 +
The 1990 Declaration of Independence of Armenia guaranteed freedom of speech. Article 24 of the 1995 Constitution of Armenia also guaranteed freedom of speech, using language that suggests modes of expression analogous to speech: "Everyone is entitled to assert his or her opinion. No one shall be forced to retract or change his or her opinion. Everyone is entitled to freedom of speech, including the freedom to seek, receive and disseminate information and ideas through any medium of information, regardless of state borders." This constitution was amended in 2005, and Article 27 of the version amended amended in 2005 specifies a guarantee of freedom of expression: "Everyone shall have the right to freely express his/her opinion. No one shall be forced to recede or change his/her opinion. Everyone shall have the right to freedom of expression including freedom to search for, receive and impart information and ideas by any means of information regardless of the state frontiers."
References:
Armenian Declaration of Independence: https://www.gov.am/en/independence/
"Constitution of the Republic of Armenia" (1995): http://www.parliament.am/legislation.php?sel=show&ID=2425&lang=eng
"Constitution of the Republic of Armenia (with the Amendments of 27 November 2005)": http://www.parliament.am/legislation.php?sel=show&ID=1&lang=eng +
According to the Australian Human Rights Commission: "The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." Furthermore, the Australian Human Rights Commission sees freedom of expression as extant in common law, and described a presumption in favor of preservation of such rights, absent explicit claims by Parliament to the contrary: "A well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. This includes freedom of expression."
References:
“Freedom of Information, Opinion and Expression.” The Australian Human Rights Commission. Accessed September 14, 2022. https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression. +
Article 13 of Austria’s 1867 “Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm” states that “Everyone has the right within the limits of the law freely to express his opinion by word of mouth and in writing, print, or pictorial representation. The Press may be neither subjected to censorship nor restricted by the licensing System. Administrative postal distribution vetoes do not apply to inland publication” (Basic Law of 21 December 1867) .
References:
1867 Basic Law: https://www.servat.unibe.ch/icl/au03000_.html +
In Azerbaijan’s 1995 constitution freedom of expression is protected via the 47th article on Freedom of Thought and Speech. It is accompanied by articles defending freedom of conscience, assembly, information and creative work.
References:
https://constitutionnet.org/sites/default/files/Azerbaijan%20Constitution.pdf
Blaustein, Albert P., and Gisbert H. Flanz. Constitutions of the Countries of the World; a Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies. "Azerbaijan Republic, Booklet 2, 1996" Permanent ed. Dobbs Ferry, N.Y: Oceana Publications, 1971. +
According to article 23 of the 1973 Constitution of Bahrain, "Freedom of speech and freedom to carry out scientific research shall be guaranteed. Every person shall have the right to express and propagate his opinion in words or in writing or by any other means, in accordance with the conditions and procedures specified by the law."
The Constitution of Bahrain was put in place in 2002 with amendments through 2017. In Chapter Three, article 23 of the 2002 Constitution, It describes freedom of expression in the following way: "Freedom of opinion and scientific research is guaranteed. Everyone has the right to express his opinion and publish it by word of mouth, in writing or otherwise under the rules and conditions laid down by law, provided that the fundamental beliefs of Islamic doctrine are not infringed, the unity of the people is not prejudiced, and discord or sectarianism is not aroused."
References:
https://www.servat.unibe.ch/icl/ba01000_.html
“Bahrain 2002 (Rev. 2017) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Bahrain_2017?lang=en. +
Article 39 of the 1972 Bangladesh Constitution states that “(1) Freedom or thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-(a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed."
References:
http://hrlibrary.umn.edu/research/bangladesh-constitution.pdf +
Article 20 of the 1966 Barbados Constitution states: "20. 1. Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interferences and freedom from interference with his correspondence or other means of communication. 2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
b. that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments; or
c. that imposes restrictions upon public officers or members of a disciplined force."
References:
https://pdba.georgetown.edu/Constitutions/Barbados/barbados66.html +
The Constitution of Belarus originally adopted in 1994 including Section II outlines the protected freedom of expression in Article 33.
References:
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzby0006&id=4&men_tab=srchresults
https://constitutionnet.org/sites/default/files/Belarus%20Constitution.pdf
https://www.venice.coe.int/webforms/documents/?pdf=CDL(2003)065-e +
In Belgium freedom of expression is guaranteed by the articles of their 1831 constitution, except in situations where crimes are committed while in use of said freedoms which is still illegal (i.e. vandalism during a protest).
“Belgium 1831 (Rev. 2014) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Belgium_2014?lang=en. +
Article 12 of the 1981 Constitution of Belize states, "Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence." However, the Constitution also articulates certain conditions under which exceptions to this might be necessary, including what might be necessary in the "interests of defence, public safety, public order, public morality or public health; ... for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the administration or the technical operation of telephone, telegraphy, posts, wireless broadcasting, television or other means of communication, public exhibitions or public entertainments; or that imposes restrictions on officers in the public service that are required for the proper performance of their functions."
https://www.constituteproject.org/constitution/Belize_2011 +
Benin’s 1990 Constitution protects group as well as individual freedom of expression in article 23. However, these expressions of belief must “take place with respect for the secularity of the state.”(Article 23).
“Benin 1990 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Benin_1990?lang=en. +
In The Kingdom of Bhutan all Bhutanese citizens are granted the right to free speech and expression under article 7 of the 2008 constitution. This does however only apply to those citizens of Bhutan.
References:
Bhutan 2008 Constitution: https://www.constituteproject.org/constitution/Bhutan_2008 +
In the state of Bolivia Freedom of expression is guaranteed by the 106th article of the seventh chapter of their 2009 constitution. Being listed right after the right of every citizen to play sports.
“Bolivia (Plurinational State of) 2009 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Bolivia_2009?lang=en. +
Bosnia and Herzegovina’s constitution adopted in 1995 lists freedom of expression as one of the thirteen rights afforded to any person that enters the territory. It is listed among rights like the right to life, right to marry and the right not to be subject to slavery.
“Bosnia and Herzegovina 1995 (Rev. 2009) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Bosnia_Herzegovina_2009?lang=en. +
According to Article 12 of the 1966 Botswana Constitution:
"(1) Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his or her correspondence. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision— (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless, broadcasting or television; or (c) that imposes restrictions upon public officers, employees of local government bodies, or teachers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
References:
1966 Constitution of Botswana: https://botswanalaws.com/consolidated-statutes/constitution-of-botswana +
The Brazilian constitution included the fundamental freedom of expression in the seventh constitution of Brazil in 1988. While later amendments would change the constitution the freedom of expression has remained constant.
“Federal Supreme Court Constitution - Stf.jus.br.” Accessed September 14, 2022. https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf. +
According to the U.S. Department of State, as of 2022 in Brunei: "Under the law and emergency powers, the government restricted freedom of expression, including for media."
https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/brunei/ +
Article 79 of the 1879 Tarnovo Constitution guaranteed freedom of the press. Article 88 of the 1947 Constitution of the People's Republic of Bulgaria guaranteed freedom of speech and of the press, as did Article 54 of the 1971 Constitution of the People's Republic of Bulgaria.
Bulgaria’s constitution adopted in 1991 provides explicit protection of freedom of expression.
References:
1879 Constitution of the Principality of Bulgaria: English translation of the Bulgarian original text of the Constitution of 1879 6 (2014) Chapter XI!: The Subjects of the Principality of Bulgaria: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0031&id=8&men_tab=srchresults
1947 Constitution of the People's Republic of Bulgaria: "Chapter VIII: Basic Rights and Obligations of Citizens," Constitution of the People's Republic of Bulgaria : 241-244 https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzbg0007&id=9&collection=cow&index=
1971 Constitution of the People's Republic of Bulgaria: "Chapter III: Basic Rights and Obligations of the Citizens," [Constitution of the People's Republic of Bulgaria] (1971): 14-22
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0021&id=17&men_tab=srchresults
“Bulgaria 1991 (Rev. 2015) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Bulgaria_2015?lang=en. +
Burkina Faso’s constitution originally began protecting freedom of expression when it was adopted in 1991 in the forms of opinions, press and the right to free information in article 8 of the original constitution.
“Burkina Faso 1991 (Rev. 2015) Constitution.” Constitute. Last modified 2015. Accessed September 16, 2022. https://www.constituteproject.org/constitution/Burkina_Faso_2015?lang=en. +
Article 31 of the 2005 Burundi Constitution states: "The liberty of expression is guaranteed. The State respects the liberty of religion, thought, consciousness and opinion."
Burundi's current constitution was put in place in May of 2018. The new constitution guarantees freedom of expression in article 31.
"Burundi 2005 Constitution": https://constituteproject.org/constitution/Burundi_2005
“Burundi 2018 Constitution.” Constitute. Last modified 2018. Accessed September 16, 2022. https://www.constituteproject.org/constitution/Burundi_2018?lang=en. +
According to Article 9 of the 1947 Constitution: "Every Cambodian is free to speak, write, print, publish. He may, either by way of the press or any other means express, spread, defend every opinion so long as he makes no unauthorized use of that right or does not tend to disturb the public order."
In the Kingdom of Cambodia freedom of expression is currently protected by the 41st article of the 1993 constitution. The nation is a kingdom the however, king reigns but does not govern and the citizens are afforded a plethora of protected rights.
“Cambodia 1993 (Rev. 2008) Constitution.” Constitute. Last modified 2008. Accessed September 19, 2022. https://www.constituteproject.org/constitution/Cambodia_2008?lang=en.
https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzkh0002&collection=cow +
The 1961 Cameroon Constitution offered a general guarantee of those rights in the UDHR (of which one is freedom of expression): "The Federal Republic of Cameroon is democratic, secular and social. It shall ensure the equality of all citizens before the law. It affirms its adherence to the fundamental freedoms set out in the Universal Declaration of Human Rights and the Charter of the United Nations." However, the 1961 Constitution did not discuss the right to freedom of expression specifically.
Freedom of expression is specifically guaranteed in the 1972 Cameroon Constitution: "the freedom of communication, of expression, of the press, of assembly, of association, and of trade unionism, as well as the right to strike shall be guaranteed under the conditions fixed by law"
https://condor.depaul.edu/mdelance/images/Pdfs/Federal%20Constitution%20of%20Cameroon.pdf
https://www.constituteproject.org/constitution/Cameroon_2008?lang=en +
In Canada the "Canadian Charter of Rights and Freedoms" of 1982 a part of the Canadian constitution that set in stone the fundamental rights and freedoms afforded to all Canadians. It is proceeded by the Constitution of Canada adopted in 1867, but the constitution makes no such explicit protection for the freedom of expression.
Heritage, Canadian. “Government of Canada.” Canada.ca. / Gouvernement du Canada, March 24, 2022. Last modified March 24, 2022. Accessed September 20, 2022. https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html. +
In Cape Verde Freedom of expression is protected by the 1980 constitution through Title 2, Article 27. The constitution further protects freedom of expression in articles 45 and 46.
“Cape Verde 1980 (Rev. 1992) Constitution.” Constitute. Last modified 1992. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Cape_Verde_1992?lang=en. +
Article 13 of the 1994 Constitution reads: "The freedom to inform, to express and diffuse opinions by speech, the pen and image, under reservation of respect of the rights of others, is guaranteed."
This right is also found can be found in the 2016 Constitution: "The freedom to inform, to express and to disseminate one's opinions by speech, the pen and the image and any other means of communication under reserve of respect for the rights of others, is guaranteed individually and collectively."
https://g7plus.fd.uc.pt/pdfs/CentralAfricanRepublic.pdf
“Central African Republic 2016 Constitution.” Constitute. Last modified 2016. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Central_African_Republic_2016?lang=en. +
Chad's 2005 revisions to the constitution were the first to offer freedom of expression in articles 28. However, the same article states "The law determines the conditions of their exercise." Which has allowed the government to suspend this constitutionally protected freedom.
“Chad 2018 Constitution.” Constitute. Last modified 2018. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Chad_2018?lang=en. +
In Chile the 1980 constitution protects freedom of expression through article 12. This article includes with it free press, the independence of education from state control and a ban government on media monopolies.
“Chile 1980 (Rev. 2021) Constitution.” Constitute. Last modified 2021. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Chile_2021?lang=en. +
The Constitution of the People’s Republic of China of 1982 explicitly protects the freedom of expression.
“People's Republic of China.” Constitution of the People's Republic of China. Accessed September 20, 2022. http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml. +
In Colombia freedom of expression is constitutionally protected by articles 46 and 47 of the constitution originally adopted in 1995.
“Conoce Nuestro Micrositio.” Contador De Visitas Gratis. Last modified 2021. Accessed September 20, 2022. https://www.corteconstitucional.gov.co/. +
In Comoros freedom of expression, thought, assembly and cultural creation are all protected by article 21 of the nation’s constitution adopted in 2018.
“Comoros 2018 Constitution.” Constitute. Last modified 2018. Accessed September 20, 2022. https://constituteproject.org/constitution/Comoros_2018?lang=en. +
The Costa Rican constitution officially guaranteed freedom of expression (that does not harm third parties or infringe on the law) in article 28 of the 1949 constitution.
“Costa Rica 1949 (Rev. 2011) Constitution.” Constitute Project. Last modified 2011. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Costa_Rica_2011?lang=en. +
Croatia guarantees freedom of expression in article 38 of the 1991 constitution.
“Croatia 1991 (Rev. 2013) Constitution.” Constitute. Last modified 2013. Accessed September 28, 2022. https://www.constituteproject.org/constitution/Croatia_2013?lang=en. +
While the 1976 constitution protected freedom of expression that promoted the socialist society of Cuba, the 2019 constitution fully guarantees freedom of expression.
“Cuba 2019 Constitution.” Constitute. Last modified 2019. Accessed September, 2022. https://www.constituteproject.org/constitution/Cuba_2019?lang=en. +
Cyprus protected freedom of expression with article 19 of their 1960 constitution.
“Cyprus 1960 (Rev. 2013) Constitution.” 2013. Constitute. https://www.constituteproject.org/constitution/Cyprus_2013?lang=en. +
The current constitution of 1992 superseded the 1960 constitution upon its adoption by the Czech national council. Both constitutions however, protected freedom of expression.
“Czech Republic 1993 (Rev. 2013) Constitution.” 2013. Constitute. https://www.constituteproject.org/constitution/Czech_Republic_2013?lang=en. +
In The Democratic Republic of the Congo expression in the form of speech, print, thought and pictures with respect to the law is protected by article 21 of the 2005 constitution.
“Congo (Democratic Republic of the) 2005 (Rev. 2011) Constitution.” Constitute. Last modified 2011. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Democratic_Republic_of_the_Congo_2011?lang=en. +
Denmark has protected freedom of expression since their 1953 constitution was adopted.
“Denmark's Constitution of 1953 - Constituteproject.org.” 2022. Accessed September 28. https://www.constituteproject.org/constitution/Denmark_1953.pdf?lang=en&lang=en. +
Djibouti guaranteed freedom of expression in the 15th article of their 1992 constitution.
“Djibouti 1992 (Rev. 2010) Constitution.” 2010. Constitute. https://www.constituteproject.org/constitution/Djibouti_2010?lang=en. +
Freedom of expression was first guaranteed by the revised laws of Dominica in 1990 +
The Dominican Republic's first constitution of 1844 protected freedom of expression. +
Section 40 of the 2002 East Timor Constitution states:
"1. Every person has the right to freedom of speech and the right to inform and be informed impartially.
2. The exercise of freedom of speech and information shall not be limited by any sort of censorship.
3. The exercise of rights and freedoms referred to in this Section shall be regulated by law based on the imperative of respect for the Constitution and the dignity of the human person."
Also relevant to freedom of expression is the defense of freedom of the press in Section 41 of the 2002 East Timor Constitution.
References:
2002. Constitution of the Democratic Republic of Timor-Leste. http://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf. +
Article 64 of the 1830 Ecuador Constitution guaranteed freedom of the press: "Every citizen can express their thoughts and publish them freely through the press with respect for decency and public morals, and always subject to the liability of the law."
Article 102 of the 1869 Constitution of the Republic of Ecuador offered a more complete defense of freedom of expression: "The expression of ideas, whether verbal, written, or printed, is free, without previous censure, provided religion, morality, and decency are respected; but any one who. may abuse this right shall be punished according to the law, and by the ordinary judges, the jury of the press being abolished."
Section III, Article 17, Part 8 of the 1878 Constitution of Ecuador guaranteed verbal expression of one's ideas as well as printed expression.
References:
1830 Constitution of Ecuador: English translation of the original Constitution of 1830. 15 (2017)
Part VIII: Civil Rights and Guarantees
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0081&id=15&men_tab=srchresults
1869 Constitution of Ecuador: English translation of the original Constitution of 1869 1244 (2010)
Title XI: Of Guarantees
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0003&id=16&men_tab=srchresults
1878 Constitution of Ecuador: Spanish text of the constitution of 1878 414 (2017) Section III: Guarantees
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0056&id=1&men_tab=srchresults +
According to Article 14 of Royal Decree No.42 (1923): “Freedom of opinion shall be ensured. Every person may express their thoughts in saying, writing, depiction, or otherwise in consistency with the law.”
References:
1923. Royal Decree No. 42 of 1923:
https://constitutionnet.org/sites/default/files/1923_-_egyptian_constitution_english_1.pdf +
Chapter 16, Section 73 of the 1841 Constitution of the State of Salvador reads: "Every citizen and inhabitant may freely express, write, and publish his opinion, without being subject to censorship, and with the sole condition of being answerable for the abuse of that liberty before a jury established by the law. In like manner, Salvadoreans may assemble peaceably and orderly to discuss questions of public interest, or to address petitions to the constituted authorities; but the originators of such meetings shall be held responsible for any disturbance which may occur."
References:
English translation of the Constitution of 1841. 218 (2010) "Chapter XVI: Declaration of the Rights, Duties, and Securities of the Nation, and of Salvadoreans in Particular," Political Constitution of the State of Salvador (1841): 218-222
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzsv0002&id=14&men_tab=srchresults +
The 1991 Constitution codified freedom of expression in Equatorial Guinea. +
The 1997 constitution of Eritrea brought with it freedom of expression. +
The 1953 European convention on Human rights protects freedom of expression along with articles 44-46 of the country's original 1938 constitution
https://www.eesti.ee/en/republic-of-estonia/human-rights/freedom-of-speech-and-religion +
Section 24 of the Eswatini constitution of 2005 protects freedom of expression. +
Chapter III, Article 41 of the 1955 Revised Constitution of the Empire of Ethiopia states: "Art. 41. Freedom of speech and of the press is guaranteed throughout the Empire in accordance with the law."
References:
1955 Revised Constitution of the Empire of Ethiopia: Peaslee Amos J.; Xydis, Dorothy Peaslee. Constitutions of Nations. The Hague, M. Nijhoff.
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/conatio0001&id=192&men_tab=srchresults +
Freedom of expression is protected in Micronesia by Article IV, Section 1 of the 1978 Constitution as Amended in 1990.
References:
1978 Constitution as Amended in 1990: Article IV: Declaration of Rights," Constitution of the Federated States of
Micronesia, 1978 : [3]-[4]
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzmf0001&id=3&men_tab=srchresults +
Freedom of expression was first protected by Article II, Section 3 of the 1970 constitution of Fiji.
References:
1970 Constitution of Fiji: Peaslee Amos J.; Xydis, Dorothy Peaslee. Constitutions of Nation. The Hague, Martinus
Nijhoff.
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/ctituson0002&id=136&men_tab=srchresults +
The 1919 constitution of Finland was the first to protect freedom of expression. +
Declaration of the Rights of Man and of the Citizen ([[Probable year:: 1789]]) +
Gabon's 1991 constitution protects Freedom of expression in the very first article. +
The Constitution of the democratic republic of Georgia of 1921 protect freedom of expression, and the redrafted version of this constitution is still in place today. +
Article 4of the "Law Concerning the Basic Rights of the German People," from 27 December 1848, asserted freedom of expression.
Article 118 of the 11 August 1919 Constitution of the German Reich (The Weimar Constitution) guaranteed freedom of expression.
References:
"IV. Fundamental Rights of the German People voted in by the National Assembly in Frankfurt.," IV. Droits Fondementaux du Peuple Allemand votes par l'Assemblee Nationale de Francfort. (1848): 210-211: https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzde0172&id=1&collection=cow&index=
The Constitution of the German Reich / August 11, 1919 / Translation of Document 2050-PS / Office of U.S. Chief of Counsel. Courtesy of Cornell University Law Library, Donovan Nuremberg Trials Collection.
https://digital.library.cornell.edu/catalog/nur01840 +
1992 Constitution of Ghana protects freedom of expression. +
The 1864 reforming of the 1844 constitution brought freedom of expression to Greece.
https://www.britannica.com/place/Greece/Reform-expansion-and-defeat +
The 1973 constitution explicitly established freedom of expression.
https://pdba.georgetown.edu/Constitutions/Grenada/gren73eng.html#mozTocId391068 +
The first Guatemalan Constitution of 1825 made cursory protections of freedom of expression. These were not specified until the 1985 constitution that is still in use today. +
Guinea's 2010 Constitution protects freedom of expression. +
The first constitution of Guinea Bissau codified in May 1984 protects freedom of expression. +
Article 146of the 1980 constitution of Guyana brought with it protected freedom of expression.
“Guyana 1980 (Rev. 2016) Constitution.” 2022. Constitute. Accessed October 30. https://www.constituteproject.org/constitution/Guyana_2016?lang=en. +
Haiti began explicitly protecting freedom of expression in 1987 with the 1987 constitution.
“Haiti 1987 (Rev. 2012) Constitution.” 2022. Constitute. Accessed October 30. https://www.constituteproject.org/constitution/Haiti_2012?lang=en. +
In Honduras the American Convention on Human Rights signed in 1969 was the first to protect freedom of expression.
“Basic Documents - American Declaration - Cidh.oas.org.” 2022. Accessed October 31. https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm. +
In Hungary the 1989 amendments to the constitution brought freedom of expression.
“Constitutional History of Hungary.” 2000. ConstitutionNet. June 25. https://constitutionnet.org/country/hungary. +
Article 2 of the 1944 Icelandic Constitution was the first to protect freedom of expression
“Constitution of The Republic of Iceland.” 2018. Government.is. January 19. https://www.government.is/publications/legislation/lex/2018/01/19/Constitution-of-the-Republic-of-Iceland-No.-33-17-June-1944-as-amended-30-May-1984-31-May-1991-28-June-1995-and-24-June-1999/. +
The Constitution of India Bill (also referred to as the Swaraj Bill) codified in 1895 was the first to protect freedom of expression.
“Constitution of India.” 2015. CAD. June. https://www.constitutionofindia.net/historical_constitutions/the_constitution_of_india_bill__unknown__1895__1st%20January%201895#:~:text=The%20Constitution%20of%20India%20Bill%201895%2C%20also%20referred%20to%20as,albeit%20within%20the%20British%20Empire. +
In Indonesia the 1945 Constitution was the first to protect freedom of expression
“Indonesia 1945 (Reinst. 1959, Rev. 2002) Constitution.” 2022. Constitute. Accessed October 30. https://www.constituteproject.org/constitution/Indonesia_2002?lang=en. +
Article 18 of the Supplementary Constitutional Law of 7 October 1907 reads: "The acquisition and study of arts, letters and sciences is free, except in so far as they are forbidden by the Sheri." Article 20 of the same document states: "All publications, except heretical works containing matter harmful to the religion of Islam, are free, and are exempt from
censureship. Whenever anything contrary to the law of the press is found in them, the publisher or author will be punished in accordance with that law. If the author is well known and resident in Persia, the publisher, printer and distributor shall be secured from any action being brought against them."
References:
Wright, Herbert F. Constitutions of the States at War 1914-1918 . Washington, U.S. Govt. Print. Off.: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/stwar0001&id=499&men_tab=srchresults# +
Article 12 of Iraq’s 1925 Constitution protected freedom of expression: “Freedom of expression of opinion, liberty of publication, of meeting together, and of forming and joining associations is guaranteed to all Iraqis within such limits as may be prescribed by law”.
Article 38 of the 2005 Iraq Constitution states that "The State shall guarantee in a way that does not violate public order and morality ... [f]reedom of expression using all means"
References:
Iraq 1925 Constitution: https://constitution.org/1-Constitution/cons/iraq/iraqiconst19250321.html
https://www.constituteproject.org/constitution/Iraq_2005 +
Freedom of expression is loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court, although never explicitly protected. +
Constitution of 1948 Was the first to protect freedom of expression.
“Italy 1948 (Rev. 2012) Constitution.” 2020. Constitute. https://www.constituteproject.org/constitution/Italy_2012?lang=en. +
According to the Preamble of the 1960 Constitution of the Republic of Cote d'Ivoire, "The People of Cote d'Ivoire proclaim their adherence to the principles of Democracy and of the Rights of Man, as they have been defined by the Declaration of the Rights of Man and of the Citizen of 1789, by the Universal Declaration of 1948, and as they are guaranteed by this Constitution." Articles 9 & 10 of the 2000 Constitution of the Republic of Cote d'Ivoire was more definitive. Article 9 held that: "The freedom of thought and of expression, notably the freedom of conscience, of religious or philosophical opinion are guaranteed to all, under reserve of respect of the law, of the rights of others, of the national security and of the public order." Article 10 was both explicit about freedom of expression: "Each has the right to express and to freely disseminate their ideas. All propaganda having for [its] object or for [its] effect to make one social group prevail over another, or to encourage racial or religious hatred is prohibited." This last prohibition on propaganda intended to divide groups with the society was very similar to a like prohibition in the 1960 Constitution.
References:
English translation of the French original text of the Constitution of 1960
Title I: Of the State and of Sovereignty," Constitution of the Republic of Cote d'Ivoire 3 November 1960 (1960): 3-4.
English translation of the French original text of the Constitution of 2000. "Chapter I: Of the Freedoms and of the Rights," Constitution of the Republic of Cote d'Ivoire 1 August 2000 (2000): 3-5 +
Article 22 of the 1960 Jamaica Constitution protects freedom of expression.
References:
English original text of the Constitution of 1962 820 (2011)
Chapter III: Fundamental Rights and Freedoms: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzjm0004&id=15&men_tab=srchresults +
Article 29 of the 1889 Japan Constitution stated: "Japanese subjects shall within the limits of the law, enjoy the liberty of speech, writing, publication, public meeting and association."
Article 21 of Japan's 1947 Constitution guaranteed the right more broadly: "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed."
References:
1889 Japan Constitution: https://constituteproject.org/constitution/Japan_1889
1946 Japan Constitution: https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html +
{{{contents}}} +
Article 10 of the 1993 Kazakhstan Constitution states: "A citizen of the Republic shall have the right to freedom of speech, creed and their free expression. Nobody can be forced to express his views or be persecuted for having convictions."
References:
"The Constitution of the Republic of Kazakhstan," International Legal Perspectives 5, no. 1 (1993): 111 +
Freedom of expression is protected in Kenya’s first Constitution, which was ratified in 1963. Chapter II Article 14b states that “Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: …freedom of conscience, of expression and of assembly and association…”. This is further elaborated in Article 23(1): "Except with his own consent, no. person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence."
Article 24(2) of the 1963 Constitution articulated the grounds for potential exception, or considerations relevant to conflict among rights and/or laws relevant to freedom of expression:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, pre- venting the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or
(c) that imposes restrictions upon public officers,
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
The language found in Articles 14(b) and 23(1) of the 1963 Constitutions is repeated in Articles 70 and 79(1) of the the 1969 Constitution. The language from 23(2) of the 1963 Constitution is also repeated in Article 79(2) of the 1969 Constitution, but further points are added to Article 79(2) of the 1969 Constitution.
References:
1963 Constitution of Kenya: http://kenyalaw.org/kl/fileadmin/pdfdownloads/1963_Constitution.pdf
1969 Constitution of Kenya: https://repository.kippra.or.ke/bitstream/handle/123456789/2324/THE%20CONSTITUTION%20OF%20KENYA%20ACT%201969%20No%205.%20of%201969.pdf?sequence=1
{{{contents}}} +
{{{contents}}} +
According to Article 16.2 of the 1993 Constitution of the Kyrgyz Republic as amended in February 1996, "Every person in the Kyrgyz Republic shall enjoy the right ... to free expression and dissemination of one's thoughts, ideas, opinions."
References:
1993 Constitution of the Kyrgyz Republic as amended in February 1996: http://hrlibrary.umn.edu/research/kyrgyzrepublic-constitution.html +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
Freedom of expression was asserted in the 1966 Lesotho Constitution, as well as in the 2010 Lesotho Constitution.
References:
1966 Lesotho Constitution: O’LEARY, B. L. “THE CONSTITUTION OF LESOTHO: AN OUTLINE.” The Comparative and International Law Journal of Southern Africa 1, no. 2 (1968): 266–70. http://www.jstor.org/stable/23240737.
1993 Lesotho Constitution:https://www.constituteproject.org/constitution/Lesotho_2018. +
Article 15 of Liberia’s 1847 Constitution first protected freedom of the press, but did not speak to other elements of freedom of expression. Article 15 of the 1984 Liberia Constitution outlines the right to freedom of expression. Article 15(a) defines the scope of the right: "Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution." Article 15(b) outlines the content of the right: "The right encompasses the right to hold opinions without interference and the right to knowledge. It includes freedom of speech and of the press, academic freedom to receive and impart knowledge and information and the right of libraries to make such knowledge available. It includes non interference with the use of the mail, telephone and telegraph. It likewise includes the right to remain silent."
References:
1847 Constitution of Liberia: https://crc.gov.lr/doc/CONSTITUTION%20OF%201847%20final.pdf
1984 Constitution of Liberia: "Schedule," Constitution of the Republic of Liberia
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzlr0001&id=4&men_tab=srchresults +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
According to the preamble of the 1959 Constitution of the Malagasy Republic, "freedom of speech, freedom of assembly, freedom of association and freedom to unionize shall be guaranteed under conditions stipulated by law"
References:
1959 Constitution of the Malagasy Republic: "Preamble," Constitution of the Malagasy Republic (1959): 1-4: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzmg0017&id=4&men_tab=srchresults +
According to the 1964 Constitution of Malawi, Article 20(1): “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication to be the public generally or to any person or class of persons) and freedom from interference with his correspondence.”
References:
1964 Malawi Constitution: http://citizenshiprightsafrica.org/wp-content/uploads/2022/03/Malawi-Constitution-1964.pdf +
The 1957 Constitution of Malaysia declares in Article 10, Section 1(a) that "every citizen has the right to freedom of speech and expression." Article 10, Section 2(a) modifies this, stating: "Parliament may by law impose ... on the rights conferred by paragraph (a) of Clause (1),such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence".
References:
1957 Malaysia Constitution: http://www.commonlii.org/my/legis/const/1957/2.html +
Articles 13 and 14 of the 1969 Constitution of the Republic of Maldives As Amended to 1975 are relevant to freedom of expression. Article 13 describes this right directly: "Every person has freedom of speech and expression of thought, orally and in writing, so long as the express provisions of Shariath and the law are not contravened." Article 14 is relevant to freedom of expression as well: "There exists freedom of acquiring knowledge and imparting it to others in
a manner that does not contravene Shariath or law."
References:
1969 Constitution of the Republic of Maldives As Amended to 1975: Peaslee Amos J.; Xydis, Dorothy Peaslee. Constitutions of Nation. The Hague, Martinus Nijhoff.: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/ctituson0002&id=723# +
{{{contents}}} +
{{{contents}}} +
Article 2, Section 1(1) of the 1979 Constitution of the Republic of the Marshall Islands guarantees freedom of speech. Article 2, Section 1(2) describes conditions for exceptions to this rule: "Nothing in this Section shall be construed to invalidate reasonable restrictions imposed by law on the time, place, or manner of conduct, provided: (a) the restrictions are necessary to preserve public peace, order, health, or security or the rights or freedoms of others; (b) there exist no less restrictive means of doing so; and (c) the restrictions do not penalize conduct on the basis of disagreement with the ideas or beliefs expressed."
References:
1979 Constitution of the Republic of the Marshall Islands: https://rmiparliament.org/cms/constitution.html?showall=1 +
{{{contents}}} +
{{{contents}}} +
The Mexican Constitutions of 1857 and 1917 both protect the citizens right to freedom of expression.
“Political Constitution of the United Mexican States - UNAM.” UNAM. Accessed November 14, 2022. https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente. +
{{{contents}}} +
{{{contents}}} +
According to Chapter 1, Article 3(g) of the 1924 Constitution of the Mongolian People's Republic, "In order to secure for the toilers real freedom for the expression of their opinions, the Mongolian People's Republic organises the press and transfers it to the labouring people."
Article 85 of the 1940 Constitution of the Mongol People's Republic refers specifically to several freedoms associated with expression: "In conformity with the interests of the workers, and in order to develop and strengthen the state system of the Mongol People's Republic, citizens of the Mongol People's Republic are guaranteed by law: (1) Freedom of speech (2) Freedom of the press (3) Freedom of assembly and meetings (4) Freedom of street processions and demonstrations."
Article 16, Section 16 of the 1992 Constitution of Mongolia states: "Freedom of thought, opinion and expression, speech, press, assembly and peaceful demonstration. Procedures for organizing demonstrations and other assemblies shall be determined by law."
References:
1924 Constitution of the Mongolian People's Republic: British and Foreign State Papers (1931)
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0134&id=1244&men_tab=srchresults
1940 Constitution of the Mongol People's Republic: Peaslee Amos J. Constitutions of Nations. Concord, Rumford Press (1950).
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.beal/connat0002&id=494&men_tab=srchresults
1992 Constitution of Mongolia: "Chapter Two: Human Rights and Freedoms," VI. The Constitution of Mongolia (1992): 73-76
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzmn0003&id=6&men_tab=srchresults +
According to Article 208 if the 1905 Constitution: "Every Montenegrin citizen has the right, within the
limits of the law, to manifest his ideas by speech, writing, the press, and efigraving."
1905 Montenegro Constitution: English translation from the French text of the original Constitution of 1905 "Part 14: The Constitutional Rights of Montenegrin Citizens," Constitution of 6/19 December 1905. (1905): 426-427: https://heinonline-org.mutex.gmu.edu/HOL/Page?handle=hein.cow/zzmb0013&id=20&collection=cow&index= +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
Federal Republic of Nigeria constitution ([[Probable year:: 1958]]) +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
{{{contents}}} +
Article 18 of the 1870 Constitution of Paraguay includes a reference to the right of inhabitants of Paraguay "to teach and to learn", and Article 23 protects "Private acts, which in no way affect public order or morals or do wrong to third parties." Article 72 of the 1967 Constitution of Paraguay offered an explicit guarantee of freedom of expression in peacetime.
References:
English Translation of the Spanish Original Text of the Constitution of 1870 4-5 (2022)
Chapter II: Rights and Guarantees: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzpy0009&id=5&men_tab=srchresults
English Translation of the Spanish Original Text of the Constitution of 1967 10 (2022)
Section 1: Individual Rights: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzpy0027&id=12&men_tab=srchresults +
Article 2 of the 1993 Constitution of Peru asserts the right of every person "To freedom of information, opinion, expression, and dissemination of thought, whether oral, written, or in images, through any medium of social communication, and without previous authorization, censorship, or impediment, under penalty of law."
https://www.constituteproject.org/constitution/Peru_2021?lang=en. +
Article 4, Section 9 of the Republic of the Philippines 1973 Constitution contains the first assertion of freedom of speech in the country’s independent history.
“1973 Constitution of the Republic of the Philippines.” Official Gazette of the Philippines. Accessed July 17, 2023. https://www.officialgazette.gov.ph/constitutions/1973-constitution-of-the-republic-of-the-philippines-2/ +
The Constitution of 1997 was the first document to protect freedom of expression in the present-day Republic of Poland, with Article 54 specifically outlining the right. That said, past Polish governments have protected this right through a variety of legal documents, the earliest being the 1921 Constitution of the Republic of Poland.
“Constitution of the Republic of Poland, March 17 1921.” Sejm of the Republic of Poland. Accessed July 17, 2023. http://libr.sejm.gov.pl/tek01/txt/kpol/e1921.html
“Constitution of the Republic of Poland of 2nd April, 1997.” Sejm of the Republic of Poland. Accessed July 17, 2023. https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm +
Article 37 of Portugal’s 1976 Constitution is the first assertion of freedom of expression in the present-day Portuguese Republic. Other Portuguese governments have also protected this right, with its earliest assertion found in Article 145(3) of the Kingdom of Portugal’s 1822 Constitution.
“Constitutional Charter of Portugal.” World Constitutions Illustrated, Heinonline. Accessed July 17, 2023. https://heinonline.org/HOL/P?h=hein.beal/modern0002&i=160
“Constitution of the Portuguese Republic.” University of Minnesota Human Rights Library. Accessed July 17. http://hrlibrary.umn.edu/research/portugal-constitution.html +
Qatar’s Constitution of 2004 was the first document in the country’s history to protect freedom of expression. Article 47 specifically outlines this right, adding that it “is guaranteed in accordance with the conditions and circumstances set forth in the law.”
“The Constitution.” Government Communications Office of the State of Qatar. Accessed July 17, 2023. https://www.gco.gov.qa/wp-content/uploads/2016/09/GCO-Constitution-English.pdf +
In the Republic of the Congo Article 25 of the 2015 guarantees freedom of expression. The article also expressly prohibits government censorship of the free media.
“Congo (Republic of the) 2015 Constitution.” Constitute. Last modified 2015. Accessed September 20, 2022. https://www.constituteproject.org/constitution/Congo_2015?lang=en. +
Freedom of expression was seen as an essential virtue of Roman citizenship at the time of the Roman Republic. This altered in the early Roman Empire when freedom of expression was contested and eventually suppressed. Octavius Augustus (rule 30 BC-AD 14), first emperor of Rome, “established an autocratic form of government, where he was the sole ruler and made all important decisions”. Although Romans had long maintained that political dominance by one person was the opposite of liberty, Augustus portrayed his dictatorial rule of the Roman state as a democratic act. In Augustus' opinion, he had returned liberty (libertas) to Rome by first liberating the Roman world from the senators who had taken power by assassinating Julius Caesar, and then by eliminating the threat of foreign domination presented by Cleopatra and her lover Marc Antony (Watts, 2020, p.13, para.3). As Augustus and his allies understood it, liberty meant freedom from internal conflict and foreign intervention, which could only come with the security and political stability that Augustus gave.
Officials regularly banned or destroyed objectionable literature during the period, and they punished, banished, or executed anybody who published anything negative of the emperors or the government. It is difficult to tell how later Romans governed political discourse. For most of the Republic, elite political speech was protected, but social customs and career possibilities meant that most elite Romans nevertheless maintained significant self-censorship (Watts, 1970, pp.159-60).
During his consulate in 59 B.C., Julius Caesar (rule 49 BC-44 BC) mandated the recording of regular procedures of senate proceedings. Under his orders, these stenographic reports, known as acta senatus, were published alongside the populi acta diurna, Europe’s first newssheet. Even after the civil war, Caesar allowed the senatorial sessions to be published indefinitely. Citizens of the Roman Empire generally enjoyed freedom of expression and the freedom of publishing writings. Augustus put an end to this practice, never again resumed in the history of Rome (Lintott, 2015, p.83, para.3). After that, the acta diurnal published only those sections of the senatorial discussions that the imperial emperor deemed suitable to print. By removing the full publicity that senate opponents had enjoyed since 59 B.C., Augustus deprived his senatorial opponents of the right to publish their opinions alongside those of the monarchic side in the official bulletin (Cramer, 1945, p.161).
The legislation was the same as it had been in the past, but other subjects fell within its jurisdiction, such as betrayal of an army, encouraging the common people to insurrection, or, more broadly, maladministration in public office (Cramer, 1945, p.170, para.1). Words were not penalized, but actions were. Augustus was the first to expand the scope of this legislation to include literature criticizing the administration. The new restrictions on free expression went even further. Censorship began to infiltrate educational classrooms. Professors found themselves in hot water after debating two sides of Augustus' official stance in class. For example, the case of professor Corvus showed the full ferocity of the new anti-freedom of expression and writing campaign (Cramer, 1945, p.170). Corvus once gave a public talk about the pros and cons of a woman's advice to married women to have no children. Augustus was particularly sensitive about birth control and celibacy. He has often advocated for legislation to reverse the trend of Rome's declining birthrate, particularly among the aristocratic class. Corvus was hauled into court for having harmed the state. Consequently, it became a standard practice to submit to school students of oratory the following topic for composition: “Cicero considers whether he should burn his writings, as Anthony promises him life if he does so” (Cramer, 1945, p.173, para.4).
Though no death sentence was meted out for just verbal or written criticisms on the government during Augustus' lifetime, the legal instrument for future executions was now formed (Cramer, 1945, p.171). After a formal judgement of guilty was given against their creator, a new sort of penalty was created for the new type of crime, the burning of the incriminating writings. In minor crimes, a guilty author's works may be sentenced to the stake; in graver cases, his whole lifework may be consigned to the flames under such a judgment. It was not long before the next obvious step was taken private ownership of condemned publications, as well as reading them, became a crime.
Because there was no clear system for identifying and punishing even traitorous statements, most restrictions on free speech in late antiquity stemmed from self-censorship rather than real imperial actions (Watts, 1970, p.159). People occasionally made the decision not to express what they want because they believe their words will have negative impacts. This makes self-censorship during the Roman Republic difficult to trace since it is, at its most basic, the act of a person anticipating a reaction to what he thought but never felt comfortable speaking or writing. Thus, authors often refuse to speak out or publish writings under circumstances when doing so may advertise their own weakness.
References
Lintott, A. W. (2015). The Constitution of the Roman Republic. Oxford University Press.
Watts, E. J. (1970). Introduction: Freedom of speech and self-censorship in the Roman Empire. CORE. https://core.ac.uk/display/153913094
Watts, E. J. (2020). Mortal Republic: How Rome fell into tyranny. Basic Books, an imprint of Perseus Books, LLC.
Cramer, F. (1945). Bookburning and Censorship in Ancient Rome: A Chapter from the History of Freedom of Speech. Journal of the History of Ideas. www.jstor.org/stable/2707362
Freedom of expression was first protected by Romania’s current semi-presidential regime through Article 30 of the country’s 1991 Constitution. However, the right was first protected in the land when it was known as the Kingdom of Romania through the 1866 Constitution.
“Constitution of 30 June/12 July 1866, as Amended 13/25 October 1876 and 8/20 June 1884.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.cow/stwar0001&i=525
“The Constitution of Romania.” President of Romania. Accessed July 17, 2023. https://www.presidency.ro/en/the-constitution-of-romania +
Article 29 of the 1993 Constitution of the Russian Federation is the first assertion of freedom of expression in the country’s independent history. That said, under the Russian Socialist Soviet Republic Russians this right was articulated as early as 1923 through the Constitution (Basic Law) of the Union of Soviet Socialist Republics.
“Constitution of the Russian Federation.” University of Minnesota Human Rights Library. Accessed July 17, 2023. http://hrlibrary.umn.edu/research/constitution-russia.html
“Constitution (Basic Law) of the Union of Soviet Socialist Republics, 1923/24.” World Constitutions Illustrated, Heinonline. Accessed July 17, 2023. https://heinonline.org/HOL/P?h=hein.journals/intcon5&i=426 +
Freedom of expression is first mentioned in Article 18 of Rwanda’s first constitution, which entered into law in 1962. However, the document does place limits on the right in accordance with other laws, public security, and the honor of others.
“Constitution de la République Rwandaise.” Library of Congress. Accessed July 10, 2023. https://www.loc.gov/item/2008700213/#:~:text=Summary,from%20the%20neighboring%20Belgian%20Congo. +
The Constitution of St. Kitts and Nevis, adopted in 1983, first protected freedom of expression in its 12th amendment. The section also stipulates that this right can be limited as “reasonably required” for a variety of public interests.
“The Constitution of Saint Christopher and Nevis.” The Government of St. Kitts and Nevis. Accessed July 10, 2023. https://www.gov.kn/the-constitution/ +
St. Lucia first protected freedom of expression in the preamble as well as the 1st and 10th articles of its 1978 Constitution. Article 10 lists several exceptions to the right, including public interests and the protection of the rights of others.
“Saint Lucia 1978.” Constitute. Accessed July 10, 2023. https://www.constituteproject.org/constitution/St_Lucia_1978 +
Adopted in 1979, the Constitution of St. Vincent and the Grenadines is the first document in the country’s history to protect freedom of expression. This right is specifically mentioned in Article 1(b).
“Saint Vincent and the Grenadines 1979.” Constitute. Accessed July 11, 2023. https://www.constituteproject.org/constitution/St_Vincent_and_the_Grenadines_1979 +
Article 13(1)(a) of Samoa’s 1962 Constitution is the first assertion of freedom of expression in the country’s history. The article also states that this right can be limited for various reasons including public interests and national security.
“Samos’s Constitution of 1962 with Amendments through 2017.” Constitute. Accessed July 11, 2023. https://www.constituteproject.org/constitution/Samoa_2017.pdf?lang=en +
Freedom of expression was first protected by Article 6 of San Marino Law 59, adopted in 1974. Also known as the Declaration of Citizen Rights, this legislation only allows for the limitation of this right in exceptional cases or to uphold public interests.
“Decreto 8 luglio 2002 n. 79 Repubblica di San Marino.” FAO. Accessed July 11, 2023. https://www.fao.org/faolex/results/details/es/c/LEX-FAOC127860/ +
Freedom of expression is not protected by any legal measures in Saudi Arabia. Expression itself is only mentioned in Article 39 of the Basic Law of Governance, adopted in 1992. It states that “mass media and all other vehicles of expression shall employ civil and polite language, contribute towards the education of the nation and strengthen unity. It is prohibited to commit acts leading to disorder and division, affecting the security of the state and its public relations, or undermining human dignity and rights.”
“Basic Law of Governance.” The Embassy of the Kingdom of Saudi Arabia. Accessed July 11, 2023. https://www.saudiembassy.net/basic-law-governance +
Freedom of expression was first mentioned in Article 4 of Senegal’s 1959 Constitution. However, as a part of the Mali Federation, the right was guaranteed by the 1959 Constitution of the Mali Federation.
“Constitution de la Federation du Mali 1959.” World Constitutions Illustrated, HeinOnline. Accessed July 11, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzsn0015&i=1
“Constitution of the Republic of Senegal 24 January 1959.” World Constitutions Illustrated, Heinonline. Accessed July 11, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzsn0033&i=4 +
Article 46 of the 2006 Serbian Constitution is the first assertion of freedom of expression in the Republic of Serbia as it is known today. That said, the right has been protected in other historical documents that governed the land prior to the present-day regime; these include the Constitution of the Principality of Serbia (1869) and the Constitution of the Federal Republic of Yugoslavia (1992).
“Constitution de la Principauté de Serbie.” World Constitutions Illustrated, Heinonline. Accessed July 11, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzcs0005&i=1
“Constitution of the Federal Republic of Yugoslavia.” Refworld. Accessed July 11, 2023. https://www.refworld.org/docid/3ae6b54e10.html
“Serbia’s Constitution of 2006.” Constitute. Accessed July 11, 2023. https://www.constituteproject.org/constitution/Serbia_2006.pdf?lang=en +
Freedom of expression was first protected under Article 21 of the Seychelles Independence Constitution of 1976. The section stipulates that this right can be limited for the purposes of public interests and protection of the rights of others.
“Seychelles Independence Constitution 1976.” Citizenship Rights Africa. Accessed June 12, 2023. http://citizenshiprightsafrica.org/wp-content/uploads/2020/02/Seychelles-Independence-Constitution-1976.pdf +
Article 21 of the 1961 Constitution of Sierra Leone contains the first assertion of freedom of expression in the country’s independent history. The Article also allows limitations on this right for the protection of public interests and other rights of individuals.
“Constitution of Sierra Leone.” World Constitutions Illustrated, Heinonline. Accessed Jlu 14, 2023. https://heinonline-org.offcampus.lib.washington.edu/HOL/COWShow?collection=cow&cow_id=366#:~:text=Unattributed%20%5Bundated%5D%20%2D%20English +
Freedom of expression was first asserted in Article 14(1) of Singapore’s 1963 Constitution. The right is subject to limitations on the grounds of security, public interest, and more.
“Singapore 1963 (rev. 2016).” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Singapore_2016?lang=en +
The Constitution of the Slovak Republic was the first document in the country’s independent history to protect freedom of expression. This right was specifically expressed in Article 26, which also allows for limitations on expression as “necessary in a democratic society.”
“Slovakia’s Constitution of 1992 with Amendments through 2017.” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Slovakia_2017.pdf?lang=en +
Freedom of expression was first asserted in an independent Slovenia under its Constitution of 1991. Article 39 of the document specifically outlines this right.
“Slovenia’s Constitution of 1991 with Amendments through 2013.” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Slovenia_2013.pdf +
The Solomon Islands’ Constitution of 1978 was the first document in the country’s independent history to protect freedom of expression. Article 12 specifically defines this right and its limitations related to public interests.
“Solomon Islands 1978 (rev. 2018).” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Solomon_Islands_2018 +
The Constitution of the Somali Republic, adopted in 1960, is the first assertion of freedom of expression in the country’s history. The right was specifically outlined in Article 28, which also defined limitations as “prescribed by law for the purpose of safeguarding morals and public security.”
“The Constitution of the Somali Republic.” Citizenship Rights Africa. Accessed July 13, 2023, http://citizenshiprightsafrica.org/wp-content/uploads/2020/10/Somalia-Constitution-1960.pdf +
Freedom of expression was first protected under South Africa’s Interim Constitution of 1993. Article 15(1) specifically defines the right.
“Constitution of the Republic of South Africa Act 200 of 1993 [repealed].” Government of South Africa. Accessed July 13, 2023. https://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993#Fundamental%20Rights +
Article 21 of South Korea’s 1948 Constitution is the first assertion of freedom of speech in the country’s independent history. The law also states that the right may not be expressed in a way that violates the honor of others or undermines morals and ethics.
“Korea (Republic of) 1948 (rev. 1987).” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Republic_of_Korea_1987 +
Article 24 of South Sudan’s 2011 Constitution is the first assertion of freedom of expression in the country’s independent history. That said, the South Sudanese people were granted this right in 1973 through the Permanent Constitution of Sudan before their country seceded from the Republic of Sudan.
“The Permanent Constitution of the Sudan.” World Constitutions Illustrated, Heinonline. Accessed July 13, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzsd0013&i=1
“South Sudan 2011 (rev. 2013).” Constitute. Accessed July 13, 2023. https://www.constituteproject.org/constitution/South_Sudan_2013 +
Article 17 of the Spanish Constitution of 1869 was the first specific assertion of freedom of expression in the country’s history. However, Spaniards were granted a form of this right, the freedom to print and publish their ideas, in the Constitution of 1837.
“Spain Constitution of 1869 - Translated by Luis Francisco Valle Velasco.” World Constitutions Illustrated, Heinonline. Accessed July 13, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzes0128&i=1
“Spain’s Constitution of 1837.” Constitute. Accessed July 13, 2023. https://www.constituteproject.org/constitution/Spain_1837.pdf?lang=en +
Freedom of expression was first protected in Sri Lanka’s 1973 Constitution. Article 18 (1)(g) specifically defines this right, as well as some limitations to it based on public interests.
“Constitution of Sri Lanka (Ceylon).” The Parliament of Sri Lanka. Accessed July 13, 2023. https://www.parliament.lk/files/ca/4.%20The%20Constitution%20of%20Sri%20Lanka%20%20-%20%201972%20(Article%20105%20%E2%80%93134)%20Chapter%20XIII.pdf +
Sudan’s Constitution of 1973 is the first document to protect freedom of expression in the country’s history. Article 48 specifically defines the right.
“The Permanent Constitution of the Sudan.” World Constitutions Illustrated, Heinonline. Accessed July 13, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzsd0013&i=1 +
Suriname’s Constitution of 1987 establishes freedom of expression. Article 19 specifically outlines the right.
“Suriname 1987 (rev. 1992).” Constitute. Accessed July 13, 2023. https://www.constituteproject.org/constitution/Surinam_1992 +
Freedom of expression was first specifically asserted in Sweden through Article 1 of the Fundamental Law on Freedom of Expression, adopted in 1991. However, freedom of the press, and thus expression through writing, has existed in the country since the adoption of the Freedom of Print Act in 1776.
“Fundamental Law on Freedom of Expression.” Sveriges Riksdag. Accessed July 12, 2023. https://www.riksdagen.se/globalassets/05.-sa-fungerar-riksdagen/demokrati/the-fundamental-law-on-freedom-of-expression.pdf
Nordin, Jonas. “The Swedish Freedom of Print Act of 1776 - Background and Significance.” Journal of International Media and Entertainment Law 7, no. 2 (2018): 137-144. https://www.swlaw.edu/sites/default/files/2018-04/Nordin%20Pages%20from%207.2%20FULL%20v7%20%284_13_18%29_.pdf +
Article 16 of Switzerland’s 1999 Constitution is the first explicit assertion of freedom of expression in the country’s history. However, prior to the adoption of that document, the Swiss Federal Tribunal recognized the right as an unwritten fundamental liberty.
Hertig Randall, Maya. “The Swiss Federal Bill of Rights in the Context of International Human Rights Protection: Added Value and Shortcomings.” Revue Interdisciplinaire d'Études Juridiques, 77 no. 2 (2016): 151-177. https://www.cairn.info/revue-interdisciplinaire-d-etudes-juridiques-2016-2-page-151.htm#re25no25
“Switzerland’s Constitution of 1999 with Amendments through 2014.” Constitute. Accessed July 12, 2023. https://www.constituteproject.org/constitution/Switzerland_2014.pdf?lang=en +
The Syrian Constitution of 1930 was the first document to protect freedom of expression in the country’s history. Article 16 specifically outlined the right and stated that it was “subject to the provisions of the law.”
“Syria Constitution (1930).” World Statesmen. Accessed July 13, 2023. https://www.worldstatesmen.org/Syria-Constitution1930.docx +
São Tomé and Príncipe’s 1975 Constitution is the first legal document in the country’s history to protect freedom of expression. Article 29 specifically outlines this right.
“São Tomé and Príncipe Constitution of 1975 with Amendments through 2003.” Constitute. Accessed July 11, 2023. https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003.pdf?lang=en +
Article 30 of Tajikistan’s constitution guarantees freedom of speech and prohibits state censorship, while Article 40 guarantees the right to freely create. The document was first adopted in 1994; however, as citizens of a Soviet Republic in the 1980s, the people of Tajikistan were granted some freedom of expression as a result of Mikhail Gorbachev’s glasnost (“openness”) and perestroika (“restructuring”) policies prior to independence.
“Constitution of the Republic of Tajikistan.” General Prosecutor’s Office of the Republic of Tajikistan. Accessed June 26, 2023. https://www.prokuratura.tj/en/legislation/the-constitution-of-the-republic-of-tajikistan.html
“Revelations from the Russian Archives - Internal Workings of the Soviet Union.” Library of Congress. Accessed June 28, 2023. https://www.loc.gov/exhibits/archives/intn.html +
Freedom of expression is initially mentioned in the Second Schedule of Tanzania’s first constitution. The document was established in 1961 after the country gained independence from the United Kingdom.
“The Tanganyika (Constitution) Order in Council, 1961.” Citizenship Rights Africa. Accessed June 26, 2023. http://citizenshiprightsafrica.org/wp-content/uploads/2016/08/Tanganyika-Constitution-Order-in-Council-1961-SI-2274.pdf +
Thailand’s 1932 constitution was the first document in the state’s history to protect freedom of speech. Article 14 guaranteed this right, though it was “subject to the provisions of the law.”
“Thailand Constitution 1932.” Bloomsbury Professional. Accessed June 28, 2023. https://media.bloomsburyprofessional.com/rep/files/thailand-constitution-1932-december.pdf +
In The Bahamas Freedom of expression in the 23rd article of the third chapter of the constitution. The constitution signed into law in July of 1973 has remained the ruling doctrine ever since.
“The Bahamas Constitution.” The Constitution of the Commonwealth of the Bahamas - Government - Details. Last modified 1973. Accessed September 14, 2022. https://www.bahamas.gov.bs/wps/portal/public/About%20The%20Bahamas/Constitution/!ut/p/b1/vVPLdqJAEP2WfMCEbugHLDvyEJXmjcCGoxjBR4MKavDrx8zMIplzJtlM0r3q07fqVt1bJeVSKuXN4rKpFv2mbRb713dOCgVYDmNIdSwMCLBjb8Y8OpZdiO-A7AMAAr_jLRc5xv3bNUcM2NBAY8XXFRACaS6lUSa_6J1dWXawPvjdlgUHmyQ1X-n2eXaGm8pDvWAjXngpfomxq0HlXHal4CdhWEorGw2hKaZN88RCoybHS83j56ZuT5d9lEZDuH7BnXIaYx5TS8jVFKXzOnPYygfE6IrjVQSJmFomrxVe50cnSkvNxEPVHkjdreJzTzLjDLq9eTTzJVi6bao6qfYMnnD18PCnf_CPw8Bn-k2kfLMUj9dSPIJHqEAKZUgRpVTDGJK7PPmHGabyJ4BXB34BPigxuwPomwxRAu4mARaE0Acqh1IkpQAV4XY42LfdLdiCq8xnJXD0wIM7AKNomfDIGhw-4eEpcGAMbmGUT5ybD7tdNfQ88lZJED8xnS1gfPmb0JUj7U44gmQa4_tQoK8mtLCr3jWikcewDCwXfjeh8q2SWp4LvrzDd0OD_P_v4btNUTUCMVWRphKAkEqlZJshqqv2VbejYtT240WndU_-bm6wXifZrOSbTSDaMtRUq5jgcG9Ul6gpf8wvqjOlsN1Re8QOYneMLHcG9-dKXmdnlqWtS0Zu_RwnpqmfmrBq5iNNmMeBzfr1FhU6r-LbnJiBzAmQJ7dCDCFZ9qG69NStKKnZ3PLsNk01OxO-j16AX-xXXbwD03mXljOvahWrXImegCr0lvU4qUBy2TY1OY2HfL4YljKie5Upsk0X6EHi41Y8SwcRX2Z4Yqz524sefgIOCsrJ/dl4/d5/L2dBISEvZ0FBIS9nQSEh/. +
The first protection of the freedom of expression in The Gambia came in the 1996 constitution. +
The 1963 constitution is the first instance where freedom of expression is outlined in the Togolese legal system. Article 12 of the document officially enshrines the right into law.
“Constitution de la République Togolaise, 5 Mai 1963.” Library of Congress. Accessed June 26, 2023. https://www.loc.gov/item/2008700247/#amp=&page=5&item_type=book +
Tonga’s constitution, adopted in 1875, protects freedom of speech in the first clause of its 7th Article. However, the clause also states that this right “does not outweigh the law of defamation, official secrets, or the laws protecting the King and the Royal Family.”
“Tonga’s Constitution of 1875 with Amendments Through 2013.” Constitute. Accessed June 26, 2023. https://www.constituteproject.org/constitution/Tonga_2013.pdf?lang=en +
The Trinidad and Tobago (Constitution) Order in Council of 1962 was the first document to establish freedom of expression in the country. The right is specifically outlined in Section 1(i) of the chapter entitled “The Recognition and Protection of Human Rights and Fundamental Freedoms.”
“Trinidad and Tobago (Constitution) Order in Council 1962.” Government of the Republic of Trinidad and Tobago. Accessed June 26, 2023. http://laws.gov.tt/pdf/A7.pdf +
Freedom of expression was first guaranteed under Article 8 of Tunisia’s first constitution after gaining independence from France. The document was adopted in 1959 with periodical amendments through 2008.
“Tunisia’s Constitution of 1959 with Amendments through 2008.” Constitute. Accessed June 26, 2023. https://www.constituteproject.org/constitution/Tunisia_2008.pdf +
The Turkish Constitution of 1924 is the first document that implemented freedom of speech, conscience, and thought into the country’s law. These rights were laid out in Section V, Article 70.
Earle, Edward M. “The New Constitution of Turkey.” Political Science Quarterly. Vol. 40. No. 1 (Mar., 1925), pp-73-100. https://www.jstor.org/stable/2142408 +
Turkmenistan’s 1992 constitution was the first legal document to protect the freedoms of conviction and expression in the state’s history, with the rights outlined in Article 26. That said, during the 1980s when the country was a Soviet Republic there were some opportunities for freedom of expression as a result of Mikhail Gorbachev’s glasnost (“openness”) and perestroika (“restructuring”) policies.
“Constitution of Turkmenistan.” University of Minnesota Human Rights Library. Accessed June 26, 2023. http://hrlibrary.umn.edu/research/turkmenistan-constitution.html
“Revelations from the Russian Archives - Internal Workings of the Soviet Union.” Library of Congress. Accessed June 28, 2023. https://www.loc.gov/exhibits/archives/intn.html +
Freedom of expression was first outlined in Tuvalu’s 1978 constitution. Section 11 of the document mentions the right briefly, while Section 24 defines it more specifically and stipulates some exceptions in regards to public interests such as safety, defense, and health.
“Constitution of Tuvalu.” Tuvalu Government. Accessed June 26, 2023. https://www.gov.tv/tuvalu-constitution/ +
Uganda’s 1962 constitution is the original document that guaranteed freedom of expression for the country’s citizens. The right is expressly mentioned in Article 17(b); however, the section also states that the right may be limited to protect public interests and the liberties of others.
“Uganda Constitution (Order in Council) 1962.” World Statesmen. Accessed June 27, 2023. https://www.worldstatesmen.org/Uganda-const-1962.pdf +
Article 34 of the Ukrainian Constitution, adopted in 1996, guarantees freedom of expression for all Ukrainians. The same article also stipulates different limitations on this right, most of which are based on public interests. Prior to their independence from the Soviet Union, Ukrainians had also been able to enjoy some freedom of expression as a result of Mikhail Gorbachev’s glasnost (“openness”) and perestroika (“restructuring”) policies during the 1980s.
“Constitution of Ukraine.” Council of Europe. Accessed June 28, 2023. https://rm.coe.int/constitution-of-ukraine/168071f58b
“Revelations from the Russian Archives - Internal Workings of the Soviet Union.” Library of Congress. Accessed June 28, 2023. https://www.loc.gov/exhibits/archives/intn.html +
Freedom of expression was first mentioned in Article 30 of the United Arab Emirates’ 1971 constitution. However, the document only guarantees this freedom “within the limits of the law.”
“United Arab Emirates 1971 (rev. 2004).” Constitute. Accessed June 27, 2023. https://www.constituteproject.org/constitution/United_Arab_Emirates_2004?lang=en +
Freedom of expression was first codified in the United Kingdom through the Human Rights Act of 1998. This piece of legislation protected the liberties guaranteed by the European Convention on Human Rights, including Article 10, which states that “everyone has the right to freedom of expression” (“European Convention on Human Rights” 1953, 12). That said, prior to the ratification of the HRA freedom of speech had a somewhat ambiguous protected status, with some courts in the UK suggesting that common law recognized the right (Barendt 2009, 1).
Barendt, Eric. “Freedom of Expression in the United Kingdom Under the Human Rights Act 1998.” Indiana Law Journal Vol. 84, Iss. 3, Art. 4 (Summer 2009). https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1125&context=ilj
“European Convention on Human Rights.” Council of Europe. Accessed June 27, 2023. https://www.echr.coe.int/documents/d/echr/convention_eng
“Human Rights Act of 1998.” Government of the United Kingdom. Accessed June 27, 2023. https://www.legislation.gov.uk/ukpga/1998/42/section/1 +
The 1st Amendment to the US Constitution was the earliest piece of federal legislation in the country’s history to protect freedom of speech. The original document became law in 1788, while the Bill of Rights, which included the First Amendment, was ratified in 1791.
“The United States Constitution.” National Constitution Center. Accessed June 27, 2023. https://constitutioncenter.org/the-constitution/full-text +
The Constitution of the Oriental Republic of Uruguay, adopted in 1830, was the first document to guarantee freedom of speech after the country gained independence from Spain. Article 29 protects this right through all methods of circulation, while also stipulating that individuals “may be held liable, in accordance with the law, for abuses which they may commit.”
“The Constitution of the Oriental Republic of Uruguay.” Refworld. Accessed June 27, 2023. https://www.refworld.org/docid/3ae6b5600.html +
The Constitution of Uzbekistan, adopted in 1992, protects freedom of thought, speech, and convictions in Article 33. Prior to their independence from the Soviet Union, however, citizens of Uzbekistan were able to enjoy some freedom of expression as a result of Mikhail Gorbachev’s glasnost (“openness”) and perestroika (“restructuring”) policies of the 1980s.
“Constitution of the Republic of Uzbekistan.” Constitution of the Republic of Uzbekistan. Accessed June 28, 2023. https://constitution.uz/en/clause/index#section7
“Revelations from the Russian Archives - Internal Workings of the Soviet Union.” Library of Congress. Accessed June 28, 2023. https://www.loc.gov/exhibits/archives/intn.html +
Article 5(1)(g) of Vanuatu’s constitution was the first legal document to recognize freedom of expression as a fundamental right of the country’s citizens. The body of laws was adopted in 1980, shortly after gaining independence from France.
“Laws of the Republic of Vanuatu.” Government of Vanuatu. Accessed June 27, 2023. https://www.gov.vu/images/legislation/constitution-en.pdf +
Article 181 of the Constitution of the Federal States of Venezuela, adopted in 1811, was the first document in the country’s history to mention freedom of expression through print. However, Article 4 of the country’s 1819 constitution was the first to guarantee the right to express using all mediums, except in cases where it interfered with “public tranquility, good customs, life, honor, esteem, and individual property.”
“Constitución Federal de 1811.” Biblioteca Virtual Miguel de Cervantes. Accessed June 27, 2023. https://www.cervantesvirtual.com/obra-visor/constitucion-federal-de-los-estados-de-venezuela-21-de-diciembre-1811/html/86de8dbc-4b14-4131-a616-9a65e65e856a_2.html
“Constitución - 1819.” Instituto Geográfico de Venezuela Simón Bolívar. Accessed June 27, 2023. https://web.archive.org/web/20171201034609/http://www.igvsb.gob.ve/marco_legal/upload/archivos/CONSTITUCION%201819.pdf +
In 1946, the Democratic Republic of Vietnam adopted a constitution which became the country’s first legal document to enshrine freedom of speech into law. Article 10(i) specifically protected this right for Vietnamese citizens.
“Vietnamese Constitution 1946.” Bloomsbury Professional. Accessed June 27, 2023. https://media.bloomsburyprofessional.com/rep/files/vietnam-constitution-1946x.pdf +
Article 26 of the Yemeni constitution guarantees freedom of thought and free expression of opinions. The document was adopted in 1991, when South Yemen and the Yemen Arab Republic united.
“Constitution of Yemen.” University of Minnesota Human Rights Library. Accessed June 27. http://hrlibrary.umn.edu/research/yemen-constitution.html +
Freedom of expression was first legally protected in Zambia under its 1964 constitution. Article 22 of the document defines and guarantees this right, while stating that limitations can be enforced based on public interests, protection of the rights of others, and more.
“The Constitution of Zambia.” Citizenship Rights Africa. Accessed June 27, 2023. http://citizenshiprightsafrica.org/wp-content/uploads/2020/06/Zambia-Constitution-1964.pdf +
Zimbabwe’s constitution of 1980 is the first document in the country’s history to protect freedom of expression. Section 20 goes into specific detail about this right, and codifies some exceptions related to public interests and protections.
“Zimbabwe Constitution 1980 up to 17th Amendment.” Zimbabwe Legal Resources Website. Accessed June 27, 2023.
https://www.law.co.zw/download/zimbabwe-constitution-1980-up-to-17th-amendment/ +
This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty.
Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.
References:
John Locke, Second Treatise of Government +
The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to "say what one pleased" a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2019, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress.
References:
On Misconceptions Generated By Translating Parrhesia and Isegoria as “Freedom of Speech,” Chin-Yu Ginny Lu, 4, The University of Arizona, 2017 Tucson.
Two Concept of Freedom (Of Speech), Teressa M. Bejan, 97-99, Oxford University, 2019 Oxford.
What is Freedom of Expression, Freedom Forum Institute Editors, Freedom Forum Institute, 2020 Washington D.C.
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.
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) +
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. +
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.
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. +
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
Japanese Penal code: http://www.japaneselawtranslation.go.jp/law/detail/?id=1960&vm=04&re=02
Universal Declaration of Human Rights: This was adopted by the UN General Assembly in 1948.
Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
European Convention on Human Rights: This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10:
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.
Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in Aksoy v. Turkey (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840).
In Ceylan v. Turkey (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test.
American Convention on Human Rights: This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13:
The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.
“Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”
“Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.”
Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65).
Cairo Declaration of Human Rights in Islam: This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court.
Article 22:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.
1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.
(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.
(d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.
International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries.
Article 19: Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals.
African Charter on Human and People’s Rights: This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.
References:
Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/
European Convention of Human Rights: https://www.echr.coe.int/Documents/Convention_ENG.pdf
American Convention: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm
Posenato: https://www.researchgate.net/publication/295244849_THE_PROTECTION_OF_THE_RIGHT_ TO_FREEDOM_OF_EXPRESSION_A_PANORAMA_OF_THE_INTER-AMERICAN_COU RT_OF_HUMAN_RIGHTS_CASE_LAW_A_PROTECAO_DO_DIREITO_A_LIBERDADE_ DE_EXPRESSAO_UM_PANORAMA_DA_JURISPRUDENCIA_DA_COR/link/56e9708808a edfed7389909f/download
International Covenant on Civil and Political Rights: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Article about whether and how the ICJ enforces human-rights law: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=njih r
Flauss: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1124&context=ilj
Cairo Declaration: http://hrlibrary.umn.edu/instree/cairodeclaration.html
African Charter: https://www.achpr.org/legalinstruments/detail?id=49
Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), https://en.unesco.org/sites/default/files/african_courts_decisions_final_eng_1.pdf
Clear and Present Danger: As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre.
Fighting Words: In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul).
O’Brien Test: In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest.
Speech in schools: In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use.
Imminent Lawless Action: In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts.
Obscenity: The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.
Libel: Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988).
Intellectual property: For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers.
Unlawful assembly: Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.
REFERENCES
US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/
Fighting words: https://www.mtsu.edu/first-amendment/article/293/chaplinsky-v-new-hampshire
US v. Obrien: https://www.mtsu.edu/first-amendment/article/709/united-states-v-o-brien#:~:text=In%20United %20States%20v.,of%20an%20anti%2Dwar%20protester.
RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul
Tinker v. Des Moines: https://www.oyez.org/cases/1968/21
Bethel v. Fraser: https://www.oyez.org/cases/1985/84-1667
Morse v. Frederick: https://www.oyez.org/cases/2006/06-278
Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action
Libel info: https://www.freedomforum.org/libel/
Hustler v. Falwell: https://www.oyez.org/cases/1987/86-1278
Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/
Info on assembly: https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html#:~:t ext=No%20First%20Amendment%20rights%20are,raises%20a%20%E2%80%9Cclear%20and %20present
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
Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the "harm principle." This, Mill claims, is the only context in which power can be "rightfully" executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an "offense principle" is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a "negative mental state" (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).
REFERENCES
Mill, JS On Liberty
Simpson, Robert Mark. “Regulating Offense, Nurturing Offense.” Politics, philosophy & economics 17, no. 3 (2018): 235–256.
In the USA, freedom of expression is a concept that applies to the state rather than to private companies. Furthermore, Section 230 of the 1996 Telecommunications Act describes the circumstances under which internet companies, social media websites, and the like may regulate speech offered by third parties through the platforms or other auspices of these companies. +
Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president ("Alien and Sedition Acts"). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime ("Schenck v. United States"). It also established, for the first time, the "clear and present danger" test, clarifying that "the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent ("Schenck v. United States"). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was "was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government" (Hudson). In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of "public peril." This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).
War may justify limitations on expression. This has long been true in the US; as Justice Holmes wrote in Schenck v. US (1919), a case over anti-draft publications, “when a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” During the Civil War, President Lincoln prohibited the publishing of information of troop movements, and government officials censored newspapers critical of the Union. During WWI, the US passed legislation such as the Sedition Act, which sought to eliminate speech “urging any curtailment of the war with intent to hinder its prosecution.” The Supreme Court has at times limited the wartime justification for restrictions. This occurred in New York Times v. US (1971), where the government was not allowed to censor publication of the Pentagon Papers, which contained information about the Vietnam War (Hudson). Contemporary jurisprudence would likely not justify some restrictions that have been allowed in the past. Schenck was decided using the clear and present danger test, which has been superseded by the more stringent imminent lawless action test (Parker). Had the newer test been used, Schenck may have been decided differently; the dissent argued that speech should be restricted only when it “imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country” (Parker). The COVID-19 pandemic has caused press crackdowns in various countries, often to downplay the outbreak’s severity. Egypt and Iran, for example have systematically curtailed reporting on the epidemic (Egypt guarantees freedom of expression in its Constitution, though this has long not been the case in practice (“Egypt). Iran guarantees free press subject to derogation in the national interest or under “Islamic criteria”). Honduras went so far as to suspend the clause in its constitution guaranteeing free speech. South Africa has curtailed free speech, albeit not to promote a rosy view of the pandemic. Rather, it has criminalized misinformation (Simon 2020). Responses to the pandemic provide insight into potential restrictions during other disasters. If a large part of Egypt or Iran were leveled by an earthquake, their governments might restrict free speech to ensure that only positive information about the recovery effort surfaces. Similarly, the South Africans who support criminalizing pandemic misinformation may also support criminalizing hurricane-safety misinformation if such a storm barrelled toward South Africa (putting aside whether this is meteorologically possible). As is argued in a report by the organization Article 19, free expression may be of even greater importance than normal during an emergency. Citizens need complete access to the truth so that they can make decisions about their safety (6). Free expression is an excellent way to ensure this truth comes out.
References:
Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo
Parker: https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test m%20of%20speech%20often%20suffers,backseat%20to%20security%20and%20order.&text=In %20other%20words%2C%20the%20Supreme,than%20in%20times%20of%20peace.
Simon: https://www.cjr.org/analysis/coronavirus-press-freedom-crackdown.php
Egyptian Constitution: https://www.constituteproject.org/constitution/Egypt_2014.pdf
“Egypt”: https://www.amnesty.org/en/latest/news/2018/09/egypt-unprecedented-crackdown-on-freedom-o f-expression-under-alsisi-turns-egypt-into-openair-prison/
Iranian Constitution: https://www.wipo.int/edocs/lexdocs/laws/en/ir/ir001en.pdf
Article 19 Report: https://www.article19.org/data/files/pdfs/publications/freedom-of-information-humanitarian-disa sters.pdf
The phrase “living constitutionalism” was first coined in Howard Lee McBain’s 1927 book The Living Constitution (Solum 1256, 2019). Although the theory was only beginning to form, the book provided the foundations of living constitutionalism that we know today: “The following passage illustrates McBain’s notion of a living constitution: ‘A word’, says Mr. Justice Holmes, ‘is the skin of a living thought.’ As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase” (Solum, 2019).
Ultimately, the fundamentals of living constitutionalism rely upon the laws of the Constitution being evolutionary, able to change over time, and adaptable to new circumstances and times without the difficult and time-consuming formal amendment process (Strauss, 2010). In a constantly changing world with advancements in technology, changes in international, diplomatic, and social relations, as well as economic evolution, the Constitution does need to be flexible to a certain degree (Strauss, 2010). However, the idea of a Constitution that constantly changes over time cannot entirely be; “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution.” (Strauss, 2010). Scholar James E. Fleming goes on to explain that:
“Strauss describes common-law constitutional interpretation as an evolving process of developing precedent and tradition, coupled with judgments of fairness and good policy. So far, so good. But some of his formulations make it sound like judges engaged in this process make judgments of fairness and good policy as if they were simply making pragmatic judgments rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate the abstract moral and political principles to which the Constitution commits us – or judgments about how best to realize our aspirational principles. He acknowledges this point elsewhere in the book, e.g., where he speaks of common-law courts as relying on “general principles derived from precedents and on its judgments about good policy.” Likewise, he refers to “a living constitution that exists apart from the text and the original understandings – that exists in, for example, the principles that protect freedom of expression and those of Brown v. Board of Education.” In short, we should conceive the Constitution as a framework or scheme of abstract aspirational principles that we elaborate through common-law constitutional interpretation” (Fleming 1178, 2011).
Regarding specifically freedom of expression in the First Amendment, the principles of freedom of expression that we know today did not become established in law until over a century after the Constitutions ratification (Strauss 52, 2010). The views of the drafters of the First Amendment drafters is unclear according to the wording of the rights, and even further “There is, in fact, good evidence that the people responsible for adding the First Amendment to the Constitution would have been comfortable with forms of suppression that would be anathema today… The central features of First Amendment law were hammered out in fits and starts, in a series of judicial decision and extrajudicial developments, over the course of the twentieth century” (Strauss 52-53, 2010).
The components within the First Amendment that protect the freedom of expression can be broken down into two main categories. First, the 1964 case of New York Times v. Sullivan helped to solidify the protection of the people’s right to criticize the government. The case was the first to place limitations upon the government’s ability to fine individuals who defame public officials (Strauss 53-54, 2010). Then five years later, in Bradenburg v. Ohio, it was decided by the Court that you, as an individual, can exercise your right to freedom of speech and expression by going as far as advocating for violence and/or use of force legally “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (Strauss 54, 2010). Along the same vein, in the 1971 case of New York Times co. v. United States, the Court decided that the Pentagon papers (top secret government documents that revealed diplomatic secrets and detailed American involvement in the Vietnam war) were legally published by the New York Times seeing as the publication did not “surely result in direct, immediate, or irreparable damage to our Nation or its people” (Strauss 54, 2010). All these cases came together to underline the fact the people have the right to broad freedom of speech and expression. The government cannot infringe upon this right unless there is clear evidence that suggests other laws will be broken as a result of the exercising of the right; this is a very different image than what the drafters of the First Amendment presumably pictured.
Second, within living constitutionalism, under the protection of the right to freedom of expression, there is a hierarchy in terms of which circumstances of exercising the right require the most protection from the Constitution and which the Constitution does not protect at all: “Certain values of low-value speech should receive less or no constitutional protection” (Strauss 55, 2010). Low-value speech, or relatively unimportant speech, includes instances of “obscenity, commercial speech, false and defamatory statements, perjury, blackmail, threats, criminal solicitation…” (Strauss 55, 2010). In lawmaking, laws must not infringe upon one’s rights to freedom of high-value speech, or relatively more important speech such as criticism of the government and public debate.
All this is in effect now because of the courts’ interpretations of the Constitution under living constitutionalism. The application of the Constitution now is very different from its first ratification. For example, eventually the Bill of Rights extended to states, but for a hundred years they did not extend to the states, and ultimately, the states were able to restrict freedom of expression freely and legally (Strauss 56, 2010). Also the focus of lawmaking has changed: “When the framers adopted the First Amendment, they were concerned with the balance of power between the federal government and the states and not just about protecting free expression in general. The entire focus of the debate over the First Amendment was on the federal government and on making clear that the Constitution’s grants of various powers to Congress did not include the power to restrict free speech or the press” (Strauss 59, 2010). The states, seeing as they were viewed as much more independent then, and federalism was much weaker, were seeking to protect their territories from an overly-powerful federal government and possible restrictions that could ensue. Ultimately, living constitutionalism has permitted for the practice of freedom of expression that we have today while still trying to maintain the central principles and themes of the American government granted to it by the Constitution.
Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).
Americans are often proud of their nation’s commitment to free speech; according to US jurisprudence, content-based restrictions on speech are generally unconstitutional unless they directly prevent criminality or public danger. Americans also tend to venerate the founding fathers, learning from a young age that the colonies courageously overthrew the British tyrants. Although free speech is enshrined in the Bill of Rights, the unique status that American courts have afforded free expression has little basis in originalism. Rather, such strong free-speech protection is a product of living-constitution theory and America’s modern notions of civil libertarianism. Originalist generally understand the First Amendment’s primary purpose as protecting political speech - not the broad speech protections we observe today. Justice Scalia, who was perhaps the country’s most prominent originalist, wrote the following sentence in his opinion of McConnell v. FEC: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Many key free-expression cases, including arguably the two most important in establishing a standard for content-based restrictions, did not draw on originalist thought. The Supreme Court’s opinion in Schenck v. US (1919), which established the clear and present danger test, draws on no founding-era understanding of the Constitution to defend this standard. Ditto for Brandenberg v. Ohio (1969), where the court replaced clear and present danger with the more-stringent imminent lawless action test. Obviously, there have been many other important free-speech cases. Still, the lack of originalist insight on such important cases is telling. Modern free-expression jurisprudence demonstrates more fidelity to living constitution theory than to originalism. As the University of Chicago’s David A. Strauss articulated, “a living Constitution is one that evolves, changes over time, and adapts to new circumstances” (2010). As such, free-speech interpretation can shift to meet the needs of a changing nation According to SMU’s Christopher Wolfe, seditious speech was accepted early in the nation’s history as an exception to the First Amendment because the nation’s stability was not a given then as it is today (2019, 536-7). Today, however, courts can reevaluate anti-government speech in light of the fact that the US is a global superpower.
There is even some evidence that the Supreme Court takes public opinion into consideration (Epstein and Martin 1). This might help explain why the court has moved toward broad free-speech protections in a country where free speech is a huge aspect of political culture (although this begs the question of whether causation occurs in the opposite direction).
School-speech cases exemplify the different First-Amendment Jurisprudence produced by living-constitution and originalist theory. Justice Thomas issued a strikingly originalist opinion in Morse v. Frederick (2007). Thomas analyzed the history of US public schools, which proliferated in the early 1800s (Thomas 2007, 2). He argues that early public schools “were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled ìa core of common valuesî in students and taught them self-control.” He concludes that because students in this area were not seen as having First-Amendment rights, neither are today’s. Meanwhile, in the court’s majority opinion in the landmark case Tinker v. Des Moines (1969), the court cited the following passage from Shelton v. Tucker (1960): “The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection." Here, it is argued that the First Amendment should protect schools’ current and future function as a breeding ground for ideas, regardless of whether such a function existed early in our nation’s history.
References:
Wolfe: https://scholar.smu.edu/cgi/viewcontent.cgi?article=4807&context=smulr
Fallone: https://law.marquette.edu/facultyblog/2018/12/on-originalism-and-the-first-amendment/ Dailey: https://open.bu.edu/bitstream/handle/2144/24083/Dailey_bu_0017N_12912.pdf?sequence=5
McConnell v. FEC: ttps://www.law.cornell.edu/supct/html/02-1674.ZX.html
Schenck v. US: https://www.law.cornell.edu/supremecourt/text/249/47
Brandenburg v. Ohio: https://www.law.cornell.edu/supremecourt/text/395/444
Strauss: https://www.law.uchicago.edu/news/living-constitution
Epstein and Martin: http://epstein.wustl.edu/research/supctEMPubOp.pdf
Morse v. Frederick: https://www.mtsu.edu/first-amendment/article/690/morse-v-frederick
Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, James E. Fleming, 1178, Boston University School of Law, 2011 Boston.
Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, Lawrence B. Solum, 1256, Northwestern University Law Review, 2019 Evanston.
The Living Constitution, David Strauss, 52-59, Oxford University Press, 2010 Oxford.
The Living Constitution, David Strauss, The University of Chicago Law School, 2010 Chicago.
Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression.
On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression.
Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in "A New Interpretation of Chinese Taoist Philosophy", “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.
References:
“Daniel Bell: What Would Confucius Make of Free Speech in the Internet Age?” Free Speech Debate, freespeechdebate.com/media/daniel-bell-on-confucianism-free-speech/.
The Analects of Confucius. chinatxt.sitehost.iu.edu/Analects_of_Confucius_(Eno-2015).pdf.
Pines, Yuri. “Legalism in Chinese Philosophy.” Stanford Encyclopedia of Philosophy, Stanford University, 16 Nov. 2018, plato.stanford.edu/entries/chinese-legalism/#TilSolRulPeo.
Freedom of Expression in China: A Privilege, Not a Right.” Freedom of Expression in China: A Privilege, Not a Right Congressional-Executive Commission on China, www.cecc.gov/freedom-of-expression-in-china-a-privilege-not-a-right.
Sheng-Li, You. “A New Interpretation of Chinese Taoist Philosophy.” Google Books, Google, books.google.com/books?id=SEkjW5Xjm6oC&pg=PT244&lpg=PT244&dq=taoism%2Band%2Bfree%2Bspeech&source=bl&ots=GU0DYRvvjk&sig=ACfU3U3iQSkzEC2ngOJUx7K63jYk9AQrrw&hl=en&sa=X&ved=2ahUKEwi158vBpr7qAhVEgXIEHUFzBrwQ6AEwEHoECAsQAQ#v=onepage&q=taoism%20and%20free%20speech&f=false.
Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today.
Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001).
In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.
References:
Aristotle and the Origins of Natural Rights, Fred D. Miller Jr., 878, 880, Philosophy Education Society Inc., 1996 United States.
Aristotle: Politics, Edward Clayton, Internet Encyclopedia of Philosophy, 2020 United States.
The First Founding Father: Aristotle on Freedom and Popular Government, Gregory R. Johnson, 30, 32, 36, 38-39, 44, Hoover Institution Press, 2001 Stanford.
The Value of Free Speech, Harvey C. Mansfield, American Enterprise Institute, 2018 Washington D.C.
To Bentham, the purpose of free expression, especially press, is to identify and censure government abuses, which Bentham believed would have more positive than negative consequences. Like other liberties in Bentham’s thought, it is an instrumental right, not an intrinsic right (Niesen 2019, 4). He worried that a chilling effect would prevent the press from serving its purpose, and he opposed censoring of “bad sentiments” (something Blackstone supported) because he did not trust society’s ability to identify them. Bentham not only advocated for the protection of true statements, but of false ones, provided they were not “‘groundless’ and made with ‘wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Niesen 5). A “wilful mendacity” standard resembles the “actual malice” standard of contemporary American jurisprudence on libel of a public figure.
References:
Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046. +
The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism.
In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, & Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism.
In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).
In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe.
Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression.
Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.
References:
Buddhism and Democracy, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, His Holiness The 14th Dalai Lama of Tibet, 1993 Washington D.C.
Buddhism and Free Speech, Sanitsuda Ekachai, Bangkok Post, 2015 Bangkok.
Buddhism and Human Rights, Wayne R. Husted, Damien Keown, Charles S. Prebish, 20, Curzon Press, 1998 Richmond.
Buddhism, Asian Values, and Democracy Journal of Democracy, vol. 10 no. 1, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, 4, Johns Hopkins Press, 1999 Baltimore.
Buddhism: Basic Beliefs, United Religions Initiative Editors, United Religions Initiative, 2020 San Francisco.
Conditions of an Unforced Consensus on Human Rights, Charles Taylor, 101, Verso, 1999 New York.
Human Rights and Global Diversity: Human Rights, Compatibility, and Diverse Cultures, Simon Caney, 68, Taylor and Francis Group, 2007.
Peek, John M. "Buddhism, Human Rights and the Japanese State." Human Rights Quarterly 17, no. 3 (1995): 534. Accessed July 8, 2020. www.jstor.org/stable/762392.
Roth, Beth. “Right Speech Reconsidered - The Eightfold Path.” Tricycle, 29 Jan. 2020, tricycle.org/trikedaily/family-dharma-right-speech-reconsidered/.
Walton, Matthew J. “What Did the Buddha Mean by 'Right Speech'?” Free Speech Debate, 10 Feb. 2015, freespeechdebate.com/discuss/what-did-the-buddha-mean-by-right-speech/.
TThe late seventeenth century was a period of great philosophical advancement. Falling roughly at the close of the Enlightenment movement, the late 1900s and early 1700s saw an expansion in the European discourse on rights and liberties within political society. While rationalists during this time period generally did not deal with specific freedoms of the citizens in their writings, writers like Leibniz and Spinoza do reveal a tendency in the early-modern rational tradition to consider the benefits of citizens’ unrestrained expression. Sources do not indicate that these philosophers were thinking of free expression in terms of right or liberty, but their writings nevertheless reveal shades of support for the concept. Leibniz was a prolific writer who produced a plethora of work spanning a wealth of topics, but some of his most important work relating to freedom and liberty occurred in the field of political philosophy. In his “Reflections on the Common Concept of Justice,” he explains his thoughts on justice within political society and the transfer of right between citizen and state. In response to Hobbes’ argument in Leviathan, Leibniz explains that he thinks it impossible for an individual to transfer all of their freedom unto a sovereign in exchange for membership and security within a state. “In the end,” he writes, “in spite of what Hobbes says, each one has retained his right and his liberty regardless of the transfer to the state, and this transfer will be provisional and limited, that is, it will take place to the degree that we believe our safety is involved” (Leibniz, 573). This does not deal specifically with the right to liberty of expression, but it certainly implies that there are certain freedoms that the citizen retains within the context of wider society. Coupled with his definition of justice as “a constant will to act in such a way that no person has reason to complain of us,” it is not unreasonable to conclude that freedom of expression could be included in the set of liberties that Leibniz believes are not transferred to the sovereign in political society. (Leibniz, 566).
Of course, Leibniz never directly argues in favor of the protection of the right to freedom of expression, so it is unclear whether he viewed it as an inalienable, natural right. The idea that certain forms of expression could potentially give a person “reason to complain” of another was certainly familiar to early-modern Europeans; defamation and libel laws had existed in England since the reign of Edward I (Statutes of the Realm). This means that Leibniz would have understood how certain forms of expression could be harmful to political society, and it is possible that he would have viewed certain forms of expression as unjust and therefore unprotected by natural right. Ultimately, Leibniz would have based his views on freedom of expression in his classification of the right itself. If he thought of it as an intrinsic natural right which citizens were incapable of giving up, then he likely would have viewed state restrictions on speech or demonstration as inherently impermissible. Unfortunately, Leibniz does not address specific rights, such as that to freedom of expression, within his discourse.
Spinoza, on the other hand, deals somewhat more specifically with the freedom of expression, though he also refrains from advocating for it outright. Spinoza’s support for free expression within society stems from his belief that the state can never truly force belief upon its subjects. He does not address freedom of thought and expression; he sees them as inevitable. In his Theological-Political Treatise, h e discusses the rights and liberties that the individual surrenders to the state when he or she enters into political society under the sovereign. When he considers the state’s ability to impose belief upon its citizens, he concludes that “the individual justly cedes the right of free action, though not of free reason and judgment; no one can act against the authorities without danger to the state, though his feelings and judgment may be at variance therewith; he may even speak against them, provided that he does so from rational conviction” (Spinoza, 195). Elsewhere in the Treatise, he writes that:
“I have thus shown:—I.That it is impossible to deprive men of the liberty of saying what they think. II.That such liberty can be conceded to every man without injury to the rights and authority of the sovereign power, and that every man may retain it without injury to such rights, provided that he does not presume upon it to the extent of introducing any new rights into the state, or acting in any way contrary to the existing laws.” (Spinoza, 199)
Like Leibniz, Spinoza does not take issue with an individual’s freedom of belief, nor does he see any reason that a citizen’s right to express themself should be restricted. It is important to note that both thinkers limit the citizen’s liberty, whether it relates to speech or not, to action that does not break any of the sovereign’s laws. Neither philosopher believed that a sovereign’s word was always morally just, but both nevertheless took issue with a citizen’s blatant violation of the law.
References:
Britain., Great. “The Statutes of the Realm : Printed by Command of His Majesty King George the Third, in Pursuance of an Address of the House of Commons of Great Britain. From V.1.”
HathiTrust, babel.hathitrust.org/cgi/pt?id=pst.000017915496.
Johns, Christopher. “The Grounds of Right and Obligation in Leibniz and Hobbes.” The Review of Metaphysics, vol. 62, no. 3, 2009, pp. 551–574. JSTOR, www.jstor.org/stable/40387825. Accessed 30 July 2020.
“Reflections on the Common Concept of Justice (1702[?]).” Philosophical Papers and Letters, by Gottfried Wilhelm Leibniz and Leroy E. Loemker, Kluwer Academic, 1989.
Spinoza, Benedictus de, and R. H. M. Elwes. The Chief Works of Benedict De Spinoza. G. Bell, 1891, oll resources.s3.amazonaws.com/titles/1710/Spinoza_1321.01_EBk_v6.0.pdf.
Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledged that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).
References:
Cornwell, Nancy C. “Rethinking Free Expression in the Feminist Classroom: The Problem of Hate Speech.” Feminist Teacher 12, no. 2 (1998): 107–18. http://www.jstor.org/stable/40545815.
Hobbes never advocates for a right to free expression. Rather, he argues that a commonwealth should censor opinions and publications promoting doctrine that undermines its wellbeing. He states that it is “annexed to the Soveraignty, to be Judge of what Opinions and Doctrines are averse, and what conducing to Peace; and consequently, on what occasions, how farre, and what, men are to be trusted withall, in speaking to Multitudes of people; and who shall examine the Doctrines of all bookes before they be published. For the Actions of men proceed from their Opinions; and in the wel governing of Opinions, consisteth the well governing of mens Actions, in order to their Peace, and Concord” (202). Despite Hobbes’ often totalitarian views, Hobbes advocates at least some liberty of expression, religion, and association. Hobbes only supported restrictions on liberty when it would have a tangible benefit to the state. In Elements of Law, he argues “that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth” (1640, 9-4). In Behemoth, he even argues that “suppression of doctrines does but unite and exasperate, that is, increase both the malice and power of them that have already believed them” (Hobbes 1681). Although Hobbes’ preference is liberty, he does not seem to have a particularly high standard for classifying ideas as seditious. He considered Christian views that violating conscience is a sin and that sanctity and faith are achieved through relations with the supernatural, not reason, to be seditious (Curley 1). One can see how these views would hurt a state - the idea about violating conscience could promote disobedience. Still, these views are nowhere near problematic to meet the standards for censorship employed by most modern Western governments.
References:
Leviathan: https://www.fulltextarchive.com/pdfs/Leviathan.pdf Curley: https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf
Elements of Law: http://library.um.edu.mo/ebooks/b13602317.pdf
Behemoth: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dialogue-behemoth-rhetoric
Freedom of Expression/Philosophical Origins/Tradition contributions/Lockean Thought/English Empiricism +
Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In A Letter, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).
References:
A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf
Daniel: https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1154&context=student_scholarship +
Free expression is not a central tenet of Marxism. However, Marx’s early writings display a distaste for censorship. In 1842 he wrote that “the real, radical cure for the censorship would be its abolition” (Marx 1842). Though he strays from this topic in his later writing, he never repudiated his earlier opinions (Heinze 2018). Heinze argues that the idea that Marxism is inherently anti-free-speech is a misconception (regardless of how some specific Marxist regimes have operated). Marx rejected some rights - property rights - because they served the interests of the wealthy and powerful. But free speech is different because it does not serve an underlying interest that Marx opposed.
References:
Marx 1842: https://www.marxists.org/archive/marx/works/1842/02/10.htm
Heinze 2018: http://humanityjournal.org/blog/karl-marxs-theory-of-free-speech-part-1/#_ftn5 +
John Stuart Mill elaborates on utilitarian ideas of using free speech in furtherance of better governance; he argued that all opinions should be allowed because public discourse will separate good ideas from bad ones (Niesen 7). This is known as the “marketplace of ideas” argument. Under this theory, even false beliefs have their place (Mill believed opinions could have truth or falsity), because they can lead public discourse to discover truth (Niesen 9). Mill makes little distinction between opinion and fact because they complement each other (Niesen 10). In Law of Libel, Mill argues that finding true ideas requires an understanding of facts (Niesen 12). Mill would not guarantee the right to voice untrue facts (Niesen 12). There is scholarly debate as to whether there is room in Mill’s thought for governments to limit the expression of true facts in certain situations. Niesen cites a thought experiment put forth by Jonathan Riley, where someone publishes pornographic material of an ex-lover, an act which conflicts with the other party’s right to self-determination. Niesen argues that this could plausibly be considered an expression of fact whose purpose is not to aid in the formation of public opinion, and a Millian government may ban this form of speech.
US courts, including the Supreme Court, have invoked the marketplace of ideas theory hundreds of times over the past century (Schultz & Hudson 2017). For a recent example, in 2017, the Supreme Court invalidated a federal law banning offensive terms in trademarks, drawing on the marketplace of ideas theory in its unanimous opinion (Hudson 2017).
References:
Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046.
Schultz and Hudson: https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas
Hudson: https://mtsu.edu/first-amendment/article/1528/matal-v-tam +
Although Physiocrats stress the importance of economic freedom, critics place them within the realm of enlightened despotism. Tocqueville classifies the physiocrats as having “little liking for political freedom” (Cavanaugh 38). Physiocrats believed that a central authority figure was needed to create prosperity by following the principles of natural law (Cavanaugh 42). Most physiocrats’ research examines their economic stances, in fact, it overwhelmingly focuses on their economic theories. However, using their economic perspectives, one can extrapolate their beliefs on general rights and liberties. The physiocrats fundamentally believe in laissez faire—that the economy was over-regulated and taxation was overwhelmingly indirect. They believed that the government should take a hands-off economic approach and let the market regulate itself. This can be expanded into their views of personal rights and liberties. The physiocrats believed in the natural, inherent rights of man and believe these rights should not be regulated except in the instance where man infringes on the rights of others (Higgs 1897). The physiocrats do not believe that men do not compromise on rights in any instance, including when they enter into a social contract (Higgs 1897). Thus, even the state must be subservient to the rights of man. This philosophy is based on the idea of society collectively benefitting or losing based on the actions of individuals (Higgs 1897). Men can maintain all of their rights, with the understanding that an infringement on another individual’s rights would be collectively bad for society in which they both reside (Higgs 1897).
References:
Henry Higgs, The Physiocrats (1897)
Cavanaugh, Gerald J. “Turgot: The Rejection of Enlightened Despotism.” French Historical Studies 6, no. 1 (1969): 31–58. https://doi.org/10.2307/286243. +
The Protestant Reformation of the sixteenth and seventeenth centuries sparked new discussions about mankind’s freedom of the conscience, belief, and to some extent, expression. Reformers from all over Europe produced writings on these freedoms, but they generally thought about these rights as they related to questions of theology. As a result, Reformation discourse focused more on a Christian’s freedom of conscience than on the citizen’s right to express their beliefs. The right to freedom of expression was explored, but much less broadly. English philosophers Thomas More and Thomas Wilson are two of the only Reformation-era thinkers to directly address the right, but their work influenced England’s political development regarding free speech over the next several centuries. Wilson’s support for the Reformation guided his views on the necessity of free expression, while More’s views were less religiously-motivated. More, who would eventually be martyred for his refusal to renounce Catholicism, made his most significant contribution to the English discourse on the right to free expression before the Anglican Reformation even began. In 1523, eleven years before English King Henry VIII announced a split from the Catholic Church, his newly-appointed Speaker of the House of Commons made a petition for freedom of speech within Parliament. The Speaker was none other than Sir Thomas More, who would later oppose Henry’s Anglican Reformation at the cost of his own life. He argued that Parliament could not be expected to form effective policy if its members were not allowed to speak honestly, saying that “it may therefore like your most abundant Grace, our most benign and godly King, to give to all your Commons here assembled your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience, and boldly in everything incident among us to declare his advice, and whatsoever happen any man to say” (More, 1523). More’s insistence on the value of free speech within a legislative body is far removed from advancing the citizen’s right to freedom of expression, but it reveals that English Reformation-era thinkers were beginning to reconsider the permissibility of magisterial censorship as early as the 1520s. While More was ultimately executed for remaining loyal to the Catholic Church during the Anglican Reformation, his conviction that one ought to be able to speak their mind without fear of legal retribution endured.
About twenty years after More’s speech, Thomas Wilson made a similar statement about freedom of expression in his 1553 work, The Arte of Rhetorique. Wilson was an English writer whose Protestant views led Catholic Queen Mary I of England to summon him out of his mid-sixteenth century exile in Italy to stand trial for heresy, and his Protestant tendencies seem to have guided his thoughts on freedom and liberty. In an introduction to The Arte of Rhetorique, George Herbert Mair asserts that “there is no mistaking [Wilson’s] zeal for the Reformation. It shines through everything he wrote, and the reader of the Logike and the [Rhetorique] will have no cause to wonder at the papal persecution of his works” (Mair, 1908). Perhaps this avid support for the Reformation movement influenced his thoughts on freedom, not only of the conscience but also of speech itself. A passage from The Arte states that “Freeness of speech is when we speak boldly and without fear, even to the proudest of them, whatsoever we please or have list to speak. Diogenes, herein did excell..this world wants such as he was” (Wilson, 1553). Like More, Wilson understood the value of free speech. Though he does not speak in this passage of a citizen’s right to freedom of expression, he was at least aware of the potential benefits that this liberty could have within political society. In fact, according to a 1981 article in The Sixteenth Century Journal, Wilson advanced the discourse on freedom of speech by “claiming that freedom of speech is a generally acknowledged duty to be exercised by anyone, not restricted to parliamentary debate” (Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics”).
Both More and Wilson made important contributions to the Reformation-era discourse on freedom of expression, but neither would live to see England’s official legislation of the right to freedom of speech within Parliamentary debate. This only occurred after the Glorious Revolution, in which William, Prince of Orange and newly crowned King of England, signed the English Bill of Rights in 1689. The Bill reflected England’s newfound stability within the European religious community by declaring the country a “Protestant Kingdom” and forbidding any Catholic from taking the throne or marrying into the royal family (English Bill of Rights). It also became the first early-modern document to legislate freedom of expression when its text guaranteed “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (English Bill of Rights). The document went into effect near the end of the Anglican Reformation movement, over a century after Wilson’s death, so it is unclear to what extent he or More influenced its creation. While The Arte of Rhetorique w as known in academic circles, its call for freedom of speech was not fully answered by the Bill, which only guaranteed that right within Parliamentary debate. The Bill’s text more closely resembles More’s 1523 speech, which specifically refers to freedom of speech within Parliamentary debate. Scholarship has yet to establish a direct link between the Bill and either of the two documents, but it is nevertheless important to note the importance of both writers’ work in advancing English discourse on the right to freedom of expression.
REFERENCES:
Avalon Project - English Bill of Rights 1689, avalon.law.yale.edu/17th_century/england.asp.
More, Thomas. “Thomas More Petition for Free Speech, 1523.” The Center for Thomas More Studies, www.thomasmorestudies.org/docs/Thomas%20More%20Petition%20for%20Free%20Sp eech.pdf.
Parkin-Speer, Diane. “Freedom of Speech in Sixteenth Century English Rhetorics.” The Sixteenth Century Journal, vol. 12, no. 3, 1981, pp. 65–72. JSTOR.
Wilson, Thomas. “The Arte of Rhetorique, with ‘Introduction.’” Edited by George Herbert Mair, The Art of Rhetoric, Renascence Editions, www.luminarium.org/renascence-editions/arte/arte.htm.
In his First Discourse, Rousseau elaborates on the problems of moral inequality that he believes have arisen out of unrestricted expression by elites in art, science, and philosophy, determining that “the pernicious inequality created among men by the distinction of talents and the debasement of virtues” gives rise to humanity’s moral decay. Elite control over what information is deemed important in society “corrupts our judgment” and teaches children “everything but their duty” to their families and communities (The Essential Rousseau 1974, p. 222). At the end of the Discourse, Rousseau encourages readers to deny elite priorities in favor of an emphasis on local, communal, and individual needs:
“Let us not pursue a reputation which would escape us and which, in the present state of things, would never repay us for what it had cost us, even if we were all qualified to obtain it. Why should we seek our happiness in the opinion of our fellow men if we can find it in ourselves? Let us leave to others the task of instructing peoples in their duties, and limit ourselves to fulfilling our own; if we have that, we have all the knowledge we need” (p. 227).
Similarly, in The Social Contract, Rousseau offers a political system to address part of this problem, outlining that the institution of his ideal body politic depends upon the “complete surrender of each associate, with all his rights, to the political community” and the allocation of each person “and all his power...under the supreme control of the general will” (p. 17). While Rousseau posits that ensures equal political conditions for all and disincentivizes decisions that do not benefit the whole community, such a system also includes harsh restrictions on individual freedom of expression as it is conventionally understood today.
While Rousseau endorses open debate and dissent during the lawmaking process, censorship plays a prominent role in the enforcement of newly-created laws to more easily keep subjects content and make legislation better reflect the general will: “although the law does not regulate morals, it is legislation that gives birth to them…censorship can be useful for preserving morals, but never for restoring them” (p. 105). To Rousseau, the majoritarian nature of the sovereign “always tends toward the public good” and leaves little opportunity for dissent in the political process after laws have been passed (p. 26). The role of the “government” in Rousseau’s thought also imposes coercive restrictions on individual expression. In carrying out its responsibilities as an executive force, Rousseau believes that the government ought to compel individuals to abide by the decisions of the general will and suppress those who speak out against it–a responsibility Rousseau recognizes as vital to the continual existence of the sovereign (p. 52).
Censorship is also a prominent element of the responsibilities of Rousseau’s lawgiver, the societal first mover who ought to “concern himself” with the “morals, customs...and public opinion” of a people in secret to maintain social order (p. 47). While debate and dissent concerning religious speculation ought to be tolerated, the moral authority outlined by the lawgiver must go unquestioned, as “open dissent from these opinions can be understood as at best a declaration of independence from the community and at worst a declaration of war against it” (Kelly 1997, 1241).
Suppression of the minority opinion in Rousseauian society severely encroaches upon individual autonomy and the incentivization of censorship immediately following the legislative process further suppresses the ability for individual thought to exist outside of what is deemed legitimate by the legislative assembly.
References:
Rousseau, Jean-Jacques, and Lowell. Bair. The Essential Rousseau. New York: New American Library, 1983.
Kelly, Christopher. “Rousseau and the Case for (and Against) Censorship.” The Journal of politics 59, no. 4 (1997): 1232–1251.
At times, states have felt intimidated by different instances and types of expression.
Historical concerns about expression have been documented as far back as ancient Rome, where laws were put in place that made offenses against state leaders and the country in general a criminal act. Later, this legislation evolved to enact severe punishments on those who caused offense to the sovereign, whether through verbal or other attacks (“Lese Majesty”). In Medieval England, heretics - those that expressed sentiments and performed acts contrary to the Church of England and its teachings - were prosecuted and burned at the stake for threatening religious authority (Statutes of the Realm, 2:12S-28: 2 Henry IV). Centuries later in 1798, the US government made it illegal for any citizen to print, state, or distribute words about the government or its members that were considered to be spiteful and untrue by passing the Sedition Act. Those who were prosecuted for such crimes were largely Democratic-Republican Journalists, indicating that the ruling Federalist party passed the legislation to suppress opposition figures whose speech threatened their authority (“Alien and Sedition Acts ” 1798).
In the current era, studies evaluating freedom of expression suggest that the right continues to be viewed as a threat to many national governments. In fact, according to the 2023 Freedom in the World report, the number of countries that are classified as having the lowest possible score in terms of freedom of expression have doubled. Additionally, statistics show that 109 countries approved some sort of legislation that restricted this same right in the year 2022 (Gorokhovskaia, Shabaz, and Slipowitz 2023). In many cases, both recently and in the past, regimes of all types have justified limitations on the freedom of expression as actions meant to protect public interests in some way, shape, or form.
Governments may demonstrate that they feel threatened by free expression through police crackdowns or legal actions. As an example, in 2022 Iranian authorities began to violently crack down on citizens protesting the death of Mahsa Amini, a young woman who had perished at the hands of the country’s morality police. Demonstrations grew, with many opposing the Islamic republic’s policies, including mandatory veiling. As a result, authorities reacted by employing internet blackouts, arrests, imprisonments, and more (Ziabari 2023). President Ebrahim Raisi justified these repressive actions and threatened further crack down on dissidents, stating that they were opposing Iran’s “security and tranquility” (The Guardian 2022), making it necessary to curtail freedom of expression.
Fears that freedom of expression may compromise public security have also been demonstrated in countries such as the United States. A primary example is the Supreme Court case Brandenburg v. Ohio, decided in 1969. The proceeding was based around a Ku Klux Klan leader who had spoken at a rally for the organization, “advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” (Brandenburg v. Ohio 1968, 444-445), according to prosecutors. As a result of this reasoning, the plaintiff was convicted under the Ohio Criminal Syndicalism statute, a decision that was later appealed to the Supreme Court on the grounds that it violated freedom of speech and expression as defined by the 1st Amendment of the US Constitution. This piece of legislation was described by the court as a way to prevent the teaching “of the moral propriety or even moral necessity for a resort to force and violence” (Brandenburg v. Ohio 1968, 448), indicating that Ohio’s state government had produced the law due to concerns that certain types of expression could lead to public corruption or insurrection. Ultimately, the Supreme Court deemed the state’s Criminal Syndicalism statute unconstitutional, widening the scope of freedom of expression in the United States (Brandenburg v. Ohio 1968, 448-449).
The interests and values of a majority group often play a contentious role in governments’ feelings and responses to certain expressive acts. Offending a dominant religion, ethnicity, or other social group tends to be perceived as a threat to the government, which can be viewed in the 2005 case heard by the European Court of Human Rights (ECHR), İ.A. v. Turkey. The applicant, a citizen of Turkey who was referred to throughout the case as Mr. İ.A., owned and directed a publishing house which had released the novel “Yasak Tümceler”, which discussed various religious and philosophical issues. Turkish prosecutors deemed the book an offense to Islam and charged him with blasphemy against the nation’s dominant religion based on Article 175 of Turkey’s Criminal Code (İ.A. v. Turkey 2005, 1-2). As a result, Mr. İ.A. appealed to the ECHR, saying that his conviction infringed upon the right to freedom of expression as defined by Article 10 of the European Convention on Human Rights. For their part, the Turkish government insisted that “the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim” (İ.A. v. Turkey 2005, 4), and thus freedom of expression had to be limited. The ECHR eventually sided with the Turkish government, agreeing that “as paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane” (İ.A. v. Turkey 2005, 5). Given this reasoning, the court confirmed that the limitations authorities placed on the applicant’s freedom of expression were justified and a “pressing social need” (İ.A. v. Turkey 2005, 5-6). The Turkish government’s actions and legislation to protect the religious majority’s feelings from an expression that abused it, backed by the ECHR.
In some cases, freedom of expression can be viewed by the government as a threat to public morality. This justification for limiting the right can be viewed in another ECHR case, Handyside v. The United Kingdom, which, similar to İ.A. v. Turkey, was based around the publishing of a book. The applicant, Mr. Handyside, owned a publishing company that bought the British rights to a work titled The Little Red Schoolbook, aimed towards school-aged audiences and including a section that discussed sexual matters (Handyside v. The United Kingdom 1976, 3-6). After it was released in the UK, many complaints about the book’s contents were made, with authorities eventually convicting Handyside of possessing obscene books for publication for gain under the Obscene Publications Acts of 1959 and 1964 (Handyside v. The United Kingdom 1976, 5), as well as confiscated the copies found in his office. Mr. Handyside then appealed these convictions to the ECHR on the grounds that the United Kingdom’s actions violated his right to freedom of expression under Article 10 of the European Convention on Human Rights, and breached several other rights laid out in the same document (Handyside v. The United Kingdom 1976, 13). However, the British government argued that they were justified in their actions, explaining that the limitations on expression were “necessary in a democratic society… for the protection of… morals” (Handyside v. The United Kingdom 1976, 16). This sentiment was backed by the ECHR, which found “that the 1959/1964 Acts have an aim that is legitimate under Article 10 para. 2 (art. 10-2), namely, the protection of morals in a democratic society” (Handyside v. The United Kingdom 1976, 16).
References
“Alien and Sedition Acts (1798)”. n.d. National Archives. Accessed June 7, 2023. https://www.archives.gov/milestone-documents/alien-and-sedition-acts#sedition
Gorokhovskaia, Yana, Adrian Shahbaz, and Amy Slipowitz. 2023. “Freedom in the World 2023: Marking 50 Years in the Struggle for Democracy.” Freedom House.
The Guardian. 2022. “Protests Spread in Iran as President Raisi vows to crack down.” September 29, 2022. https://www.theguardian.com/world/2022/sep/24/protests-spread-in-iran-as-president-raisi-vows-to-crack-down
Handyside v. The United Kingdom, Application No. 5493/72, ECtHR judgment of 7 December 1976. https://hudoc.echr.coe.int/eng?i=001-57499
İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 December 2005.
https://hudoc.echr.coe.int/eng?i=001-70113
“Lese Majesty.” The Columbia Electronic Encyclopedia, Columbia University Press, 2013, https://encyclopedia2.thefreedictionary.com/lese+majesty. Accessed 7 June 2023.
Parliament of the United Kingdom. Obscene Publications Act 1959. 7 & 8 Eliz. 2. c.66
https://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/section/1
Statutes of the Realm, 2:12S-28: 2 Henry IV
Supreme Court Of The United States. U.S. Reports: Brandenburg v. Ohio, 395 U.S. 444. 1968. Periodical. https://www.loc.gov/item/usrep395444/.
Ziabari, Kourosh. 2023. “Iranian Protests and the Crisis of Free Speech.” Arab Center Washington DC. February 23, 2023. https://arabcenterdc.org/resource/iranian-protests-and-the-crisis-of-free-speech/
When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter:
“These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)
All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton and Khaitan 1125, 2019).
One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.
In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom.
Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law.
Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States.
REFERENCES:
Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013)
Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/
The freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights.
In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017).
When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter:
“These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)
All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion.
The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015).
Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015).
The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights.
Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence.
Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Hollis-Brusky, Amanda, “The Supreme Court Closed the Door on LGBTQ Discrimination. But it Opened a Window.” Monkey Cage at The Washington Post. June 16, 2020.
Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.
Stephanie Russell-Kraft, The Clash Between Religious Freedom and Equality Law, John C. Danforth Center on Religion and Politics 2017 St. Louis.
Sapir, Gidon, and Daniel Statman. “Why Freedom of Religion Does Not Include Freedom from Religion.” Law and philosophy 24, no. 5 (2005): 467–508.
Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights.
Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights.
Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Explained by Donald and Howard, freedom of religion is upheld by all major human right treaties. Demonstrated by this, freedom of religion is prioritized within international human rights law. Article 18 of the Universal Declaration of Human Rights, Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human rights and Fundamental Freedoms all protect individuals’ freedom of religion, which includes “freedom of thought, conscience, and religion.” Present in each of these major treaties, freedom of religion is observed to be highly respected and prioritized by the United Nations.
Additionally, freedom of religion is enshrined in most constitutions, demonstrating its high status. For example, only 43 countries, 20% of all nations, assert a state religion in their constitutions, denying religious freedom. As the majority of countries do not uphold a state religion, they allow for degrees of religious freedom. Observed by this trend among the majority of countries, there is a general global consensus that freedom of religion is a highly regarded fundamental right.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London. +
The right to freedom of religion is interpreted and expressed in a number of different ways all over the world. Most modern states’ constitutions recognize freedoms of belief, faith, and practice of religion within their borders, so long as that practice does not pose a danger to the state or society. Many of these countries respect their citizens’ right to freedom of religion, though some do place certain restrictions on the right by requiring religious organizations to register, outlawing certain religious practices, or restricting religious toleration to a few choice faiths. The United States was one of the earliest countries to embrace the principle of freedom of religion, but its implementation of that right within its legal framework is rather unusual. While the country was founded upon the principles of liberty and freedom, it does not specify the right to religious freedom within its Constitution. Rather, the First Amendment of the Bill of Rights states that “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” (United States Bill of Rights, Article I). This means that the government must respect the people’s religious freedom, but it does not specifically establish the right to the free practice of faith or belief. Of course, the right has been exercised freely throughout the country’s history, and over the years the courts have determined that the right is implied within the Constitution. Canada also guarantees the right to religious freedom, but it does so more directly than the United States. Its constitution guarantees that “freedom of conscience, religion, thought, belief, opinion, expression, and the right to equal protection and benefit of the law without discrimination based on religion” (U.S. State Department, “Canada,” 2018, 1). By directly invoking freedom of religion in its legal system, Canada leaves less to interpretation than the United States Bill of Rights. It also allows citizens to protect their own right to religious freedom by appealing directly to the right in legal cases. A 2018 U.S. State Department report on Canadian religious freedom notes that while Canadian law “imposes ‘reasonable limits’ on the exercise of these religious rights only where such restrictions can be ‘demonstrably justified in a free and democratic society,’” the law also “permits individuals to sue the government for ‘violations’ of religious freedom.” (U.S. State Department, “Canada,” 2018, 3).
Of course, not every country that guarantees the right to freedom of religion allows its citizens to exercise that right. The People’s Republic of China, for instance, guarantees its citizens the right to freedom of religion, but places heavy restrictions on the practice of that freedom. The U.S. State Department reports that the PRC government “limits protections for religious practice to ‘normal religious activities’ and does not define ‘normal,’” and that it “continues to exercise control over religion and restrict the activities and personal freedom of religious adherents when the government perceived these as threatening state or Chinese Communist Party (CCP) interests” (U.S. State Department, “China,” 2018, 1). The report also states that in 2018 “there continued to be reports of deaths in custody and that the government tortured, physically abused, arrested, detained, sentenced to prison, or harassed adherents of both registered and unregistered religious groups for activities related to their religious beliefs and practices” (U.S. State Department, “China,” 2018, 1). Reports show that Muslims have recently been the most heavily targeted religious group as the Chinese government continues to crack down on religious expression.
The Democratic People’s Republic of Korea is guilty of similar rights violations. While the North Korean constitution also guarantees freedom of religion for its citizens, the State Department reports that within the country“there was an almost complete denial by the government of the rights to freedom of thought, conscience, and religion, and in many instances, violations of human rights committed by the government constituted crimes against humanity” (U.S. State Department, “North Korea,” 2018, 1). While information on the North Korean government is notoriously difficult to acquire, accounts from witnesses and refugees indicate that the country is reluctant to allow the free practice of religion, and that it actively represses the people’s exercise of this right through the use of force. The State Department reports that “one [North Korean] refugee said there was no religious freedom in the country, and another said that if someone were found to be a Christian, he or she would immediately be shot.” (U.S. State Department, “North Korea,” 2018, 3). Such horrific conditions prove that while many states may claim to respect their citizens’ freedom of religion, this right is often subject to heavy regulation and restriction.
Iran is almost unique in its treatment of religious freedom, because its government does not guarantee the right at all. “The constitution defines the country as an Islamic republic, and specifies Twelver Ja’afari Shia Islam as the official state religion. It states all laws and regulations must be based on “Islamic criteria” and an official interpretation of sharia” (U.S. State Department, “Iran,” 2018, 3). The discussion of other religions is restricted within the country, and the constitution states that “no one may be ‘subjected to questioning and aggression for merely holding an opinion.’” According to the State Department, the law also “prohibits Muslim citizens from changing or renouncing their religious beliefs” (U.S. State Department, “Iran,” 2018, 3). This does not mean that minority religions are outlawed; recognized minority groups are allowed to operate private schools, though they are subject to a number of restrictions (U.S. State Department, “Iran,” 2018, 7). In such a theocracy, the exercise of religious freedom is very difficult and exceedingly dangerous.
Different countries interpret the right to freedom of religion in a number of varying ways, and this often leads governments to restrict their citizens’ exercise of that right. Most modern states guarantee the right within their constitutions, but the actual protection of citizens’ freedom of religion is not always observed in states controlled by authoritarian or oppressive regimes.
References:
United States, Congress, Bureau of Democracy, Human Rights, and Labor. IRAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. www.state.gov/wp-content/uploads/2019/05/IRAN-2018-INTERNATIONAL-RELIGIOUS-FRE EDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT.
International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/CHINA-INCLUSIVE-2018-INTERNATIONAL-R ELIGIOUS-FREEDOM-REPORT.pdf.
Ochab, Ewelina U. “Is China Conducting A Crackdown On Religion?” Forbes, Forbes Magazine, 20 Apr. 2019, www.forbes.com/sites/ewelinaochab/2019/04/20/is-china-conducting-a-crackdown-on-religion/.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. ITALY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/ITALY-2018-INTERNATIONAL-RELIGIOUS-FR EEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. IRAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/IRAN-2018-INTERNATIONAL-RELIGIOUS-FRE EDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor.
DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA (DPRK) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/KOREA-DEM-REP-2018-INTERNATIONAL-RE LIGIOUS-FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/RUSSIA-2018-INTERNATIONAL-RELIGIOUS-F REEDOM-REPORT.pdf.
U.S. Mission Egypt, 23 June, 2019, Topics: News. “2018 Report on International Religious Freedom: Egypt.” U.S. Embassy in Egypt, 27 June 2019, eg.usembassy.gov/2018-report-on-international-religious-freedom-egypt/.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. BELARUS 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/BELARUS-2018-INTERNATIONAL-RELIGIOUS -FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. CANADA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/CANADA-2018-INTERNATIONAL-RELIGIOUS- FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. NEW ZEALAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/NEW-ZEALAND-2018-INTERNATIONAL-RELI GIOUS-FREEDOM-REPORT.pdf.
Regime type affects all facets of political life within a country, and the exercise of religious freedom is no exception. As might be expected, governments and societies in democratic states like New Zealand and Canada tend to show greater levels of respect for religious freedom than states with different regime types. Citizens living in states controlled by hybrid regimes tend to still experience some level of religious freedom, but this right is severely restricted by government-required registries and heavy oversight of religious practice. Autocracies, predictably, are the regime type that shows the least respect for their citizens’ right to religious freedom.
The right to religious freedom is expressed openly and without fear in the world’s most democratic states. Countries like New Zealand and Canada, both of which are listed among the most democratic states in the word, both stipulate in their constitutions that citizens shall enjoy total freedom of faith, belief, and religion. A 2018 U.S. State Department report on religious freedom in Canada mentions a constitutional guarantee that citizens shall enjoy “freedom of conscience, religion, thought, belief, opinion, expression, and the right to equal protection and benefit of the law without discrimination based on religion” (U.S. State Department, “Canada,” 2018, 1). New Zealand’s constitution makes a very similar guarantee, and both countries are reported to enjoy high levels of religious liberty. Discrimination on the basis of religion is usually outlawed in democratic states, and while religious intolerance may sometimes be observed in the form of citizen anti-semitism or vandalism, democratic governments as a whole work to limit any religious injustice within their borders. Even democracies with obvious religious majorities like Italy tend to allow the free exercise of religious practices, though most do require religious organizations to register with the government in order to receive tax exemptions (U.S. State Department, “Italy,” 2018, 1).
Hybrid regimes usually exert more significant influence over the exercise of religious freedom within their borders. Egypt, for example, is a state governed by limited democracy which also shows clear autocratic tendencies. In Egypt, “The constitution states that ‘freedom of belief is absolute’ and ‘the freedom of practicing religious rituals and establishing worship places for the followers of divine (i.e. Abrahamic) religions is a right regulated by law’” (U.S. State Department, “Egypt,” 2018). However, U.S. State Department reports show that these freedoms are subject to a number of restrictions. It mentions that Muslim citizens are prohibited from converting to a new relition under Egyptian law, and it notes that the Ministry of Interior Religious Affairs Department has the power to deny religious groups official recognition if they are determined to pose a threat to the nation (U.S. State Department, “Egypt,” 2018). A U.S. State Department report on religious freedom in Russia reveals a similar willingness within the Russian government to restrict religious practices if they are deemed “extremist” or “dangerous” (U.S. State Department, “Russia,” 2018). In hybrid regimes like Russia and Egypt, religious practice is protected but heavily regulated.
Autocratic regimes are generally the most restrictive of religious freedom. China, perhaps the world’s most powerful autocracy, shows the lack of respect that it has for its citizens’ religious convictions in its treatment of Muslims, in particular. The constitution of the People’s Republic of China allows for the free practice of approved religions, but a Forbes article from 2019 reports that “China is participating in the practice of forced conversion whereby Muslims are forced to ‘eat pork and drink alcohol’” (Ochab, “Is China Conducting a Crackdown On Religion?” 2019). A U.S. State Department report from 2018 similarly notes that “there continue to be reports of deaths in custody and that the government tortured, physically abused, arrested, detained, sentenced to prison, or harassed adherents of both registered and unregistered religious groups for activities related to their religious beliefs and practices” (U.S. State Department, “China,” 2018). Belarus, which is ruled by an authoritarian dictatorial regime, imposes similar restrictions on the free practice of religion. Like China, North Korea, and a number of other autocratic nations, Belarus guarantees religious freedom within its constitution but fails to guarantee this right for its citizens. However, a State Department report notes that Belarusian law “prohibits religious activities directed against the sovereignty of the state, its constitutional system, and ‘civic harmony’” (U.S. State Department, “Belarus,” 2018). It states that the Belarusian regime bans all religious activity by unregistered groups, and explains that there are a number of administrative and legal obstacles that prevent most religious organizations from being officially recognized (U.S. State Department, “Belarus,” 2018).
Regime type plays a significant role in determining the extent to which a government protects the exercise of religious freedom. In general, the more democratic a regime is, the more likely it is to guarantee and respect its citizens’ right to freedom of religion.
REFERENCES:
United States, Congress, Bureau of Democracy, Human Rights, and Labor. IRAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. www.state.gov/wp-content/uploads/2019/05/IRAN-2018-INTERNATIONAL-RELIGIOUS-FRE EDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/CHINA-INCLUSIVE-2018-INTERNATIONAL-R ELIGIOUS-FREEDOM-REPORT.pdf.
Ochab, Ewelina U. “Is China Conducting A Crackdown On Religion?” Forbes, Forbes Magazine, 20 Apr. 2019, www.forbes.com/sites/ewelinaochab/2019/04/20/is-china-conducting-a-crackdown-on-religion/.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. ITALY 2018
INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/ITALY-2018-INTERNATIONAL-RELIGIOUS-FR EEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. IRAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/IRAN-2018-INTERNATIONAL-RELIGIOUS-FRE EDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor.
DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA (DPRK) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/KOREA-DEM-REP-2018-INTERNATIONAL-RE LIGIOUS-FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/RUSSIA-2018-INTERNATIONAL-RELIGIOUS-F REEDOM-REPORT.pdf.
U.S. Mission Egypt, 23 June, 2019, Topics: News. “2018 Report on International Religious Freedom: Egypt.” U.S. Embassy in Egypt, 27 June 2019, eg.usembassy.gov/2018-report-on-international-religious-freedom-egypt/.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. BELARUS 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/BELARUS-2018-INTERNATIONAL-RELIGIOUS -FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. CANADA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/CANADA-2018-INTERNATIONAL-RELIGIOUS- FREEDOM-REPORT.pdf.
United States, Congress, Bureau of Democracy, Human Rights, and Labor. NEW ZEALAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT. International Religious Freedom Report for 2018, www.state.gov/wp-content/uploads/2019/05/NEW-ZEALAND-2018-INTERNATIONAL-RELI GIOUS-FREEDOM-REPORT.pdf.
Article 18 of the Universal Declaration of Human Rights, a landmark document within the field of international human rights law, recognizes freedom of religion as a fundamental and intrinsic human right. It establishes the right to freedom of religion as encompassing an individual’s “freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” (UN General Assembly 1948, 1). Since the adoption of the Universal Declaration by the United Nations General Assembly in December of 1948, freedom of religion is guaranteed in the charters and constitutions of several regional organizations, including the Organization of American States (OAS), the Council of Europe (CoE), and the African Union (AU), as well as their member states, reinforcing the belief that the right is fundamental and should generally be protected, with rare exceptions, on an international level. Individual states vary on their interpretation and length to which they guarantee the freedom, though a majority include it within their legal code and consider it a human right, with few nations serving as notable exceptions.
The right to freedom of religion is protected under international human rights law, appearing in various international documents and treaties, most markedly in the Universal Declaration of Human Rights and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The United Nations considers “that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed” (UN General Assembly 1981, 1). The organization expects its member states to promote and encourage universal respect and observance of the right, stating that the points set forth relating to freedom of religion in the UN Declaration on the Elimination of All Forms of Intolerance “shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice”, with few exceptions: “Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981, 3). With 193 Member States, the UN is the world’s largest intergovernmental organization, pushing for the protection of the right to freedom of religion internationally and its recognition as a fundamental human right by all nations under international human rights law.
The Organization of American States (OAS) is an international organization that brings together “all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the [Western] Hemisphere” (“OAS: Who We Are” 2023). It is committed to upholding freedom of religion, with the Declaration of the OAS General
Secretariat on the Promotion and Protection of Freedom of Religion or Belief reaffirming the organization’s belief that “guaranteeing freedom of religion or belief continues to be a fundamental responsibility of States” as it is “essential to understand that religious freedom or belief as a human right is, in turn, linked to the defense of the rights of all individuals and groups, in all areas” (“Declaration of the OAS General Secretariat.” 2023, 1). Currently, every country in the Americas includes a provision protecting freedom of religion in their constitution, though the United States Commission on International Religious Freedom raised concern for indigenous peoples in Latin America in their 2023 annual report: “Indigenous peoples in Latin America have long faced a series of collective and individual threats to the full enjoyment of their religious freedom and related rights” (75). It also focused on Cuba and Nicaragua as countries of particular concern, citing the Nicaraguan regime’s “campaign of harassment and severe persecution against the Catholic Church by targeting clergy, eliminating Church-affiliated organizations, and placing restrictions on religious observances” and the Cuban government’s tight control over religious “activity through surveillance, harassment of religious leaders and laypeople, forced exile, fines, and ill treatment of religious prisoners of conscience”. (20-30). The report did not note other concern or violation of freedom of religion in the Americas region in other states. The right is generally protected across America and is considered a fundamental human right.
Article 8 of the African Charter on Human and Peoples’ Rights, adopted by the African Union in 1981, states that “freedom of conscience, the profession and free practice of religion shall be guaranteed” and that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms” (Organization of African Unity 1981, 4). The African Union is a continental union consisting of 55 member states, with a majority including provisions protecting freedom of religion in their constitutions, though there are a few countries where it is very limited or violated. The U.S. Commission on International Religious Freedom highlighted Eritrea, Mauritania, Nigeria, Central African Republic, and Egypt for a lack of religious freedom, citing instances of religious persecution and punishment for certain religious minorities (“2023 Annual Report” 2023, 11). The report did not find any serious violations in other African nations, with most prohibiting religious discrimination and allowing individuals to practice their religion. The Council of Europe (CoE) also holds freedom of religion to be a fundamental right, explicitly stating so in Article 9 in the Convention for the Protection of Human Rights and Fundamental Freedoms. The document states, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance” noting few exceptions as “are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (European Court of Human Rights 1950, 11). With the end of the Cold War, virtually all of Europe has an unprecedented general freedom of religion guaranteed by their constitution (Juviler 2003, 859). However, there have been concerns with rising Islamophobic legislation, including the banning of particular religious clothing like burqas (U.S. Department of State 2022, 6). Though practices vary, the freedom is held in high standard and seen as a core human right.
The Asia Pacific Forum (APF) is a regional grouping of the Global Alliance of National Human Rights Institutions (GANHRI) that focuses on monitoring, promoting, and protecting human rights in Asia and the Pacific. It is a coalition of 25 independent national human rights institutions that aim to uphold human rights, including freedom of religion, educating and reaffirming the “purposes and principles of the Charter of the United Nations with regard to the promotion and encouragement of respect for all human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” (Asia Pacific Forum 2013, 205). The Asia Pacific Forum notes that unlike other regions in the world, “there is no regional court or protection system in the Asia Pacific that people can turn to when their human rights are abused,” though they can help “shape laws, policies, practices and attitudes that create strong, fair and inclusive communities” to combat this (“About the Asia Pacific Forum 2023). Several countries in Asia were listed in the U.S. Commission on International Religious Freedom’s annual report on freedom of religion as countries of particular concern. It noted Afghanistan, China, Iran, Pakistan, Saudi Arabia, and Vietnam, among others (“2023 Annual Report” 2023,
11). Though most states in the continent protect freedom of religion in their legal code, there is quite a discrepancy in their practices and extent to which they safeguard it. The report noted that Vietnamese authorities “intensified their control and persecution of religious groups—especially unregistered, independent communities” while the Saudi government “continued to systematically deny non-Muslims the ability to build houses of worship or worship in public” and create anti-blasphemy and apostasy laws (“2023 Annual Report” 2023, 38-46). It further states that China “has become increasingly hostile toward religion, implementing campaigns to ‘sinicize’ Islam, Tibetan Buddhism, and Christianity to remove alleged ‘foreign influences’” and in Afghanistan the government of the “Taliban also either actively targets, discriminates against, or outright denies the existence of many vulnerable religious minorities” (“2023 Annual Report” 2023, 12-16).
On an international level, there is a belief that freedom of religion is a fundamental human right that should be protected, with few exceptions. Intergovernmental organizations, which a majority of the countries in the world belong to, such as the UN, the AU, and the CoE, reaffirm the importance of the right and push its members to uphold it. On an individual state by state basis, however, the amount of protection and importance the right receives varies. The majority of countries include provisions safeguarding freedom of religion in the constitution, but their rules and regulations differ, as well as their practices. Overall, the right to freedom of religion is generally regarded as an intrinsic and fundamental by a large number of states and other actors.
References:
“About the Asia Pacific Forum.” 2023. Asia Pacific Forum. Accessed July 4.
https://www.asiapacificforum.net/about/.
“Annual Report” 2023. United States Commission on International Religious Freedom.
https://www.uscirf.gov/sites/default/files/2023-05/2023%20Annual%20Report.pdf
Asia Pacific Forum. 2013. Human Rights Education: A Manual for National Human Rights
Institutions. Asia Pacific Forum National Human Rights Institutions. https://apf-
prod.s3.amazonaws.com/media/resource_file/2019_HRE_Manual_for_NHRIs.pdf?AWS
AccessKeyId=AKIA57J6V557ISASX34R&Signature=NXImyA3dX%2FFHi6h08a
uFkAwzEnE%3D&Expires=1688487584.
“Declaration of the OAS General Secretariat.” 2023. Organization of American States. General
Secretariat https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-008/23.
European Court of Human Rights. 1950. European Convention on Human Rights. Council of
Europe. https://www.echr.coe.int/Documents/Convention_ENG.pdf.
Juviler, Peter. 2003. Freedom and Religious Tolerance in Europe . University of Michigan.
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1316&context=mjil.
“OAS: Who We Are.” 2023. Organization of American States.
https://www.oas.org/en/about/who_we_are.asp.
Organization of African Unity. 1981. African Charter on Human and Peoples’ Rights.
https://au.int/sites/default/files/treaties/36390-treaty-0011.pdf.
UN General Assembly. 1981. Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, OHCHR.
https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination
UN General Assembly. 1948. Universal Declaration of Human Rights, 217 A (III),
https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
U.S. Department of State. 2022. France 2022 International Religious Freedom Report.
https://www.state.gov/wp-content/uploads/2023/05/441219-FRANCE-2022-
INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf.
Under international human rights law, freedom of religion is a fundamental and generally protected right, with exceptions. Though states have their own rules and regulations curtailing the right to freedom of religion, they often fall under reasons that are generally viewed as legitimate by the international community, with those that do not being subject to scrutiny. There are a small, but prominent number of states that, despite this international pressure from intergovernmental organizations and other nations, restrict freedom of religion for reasons that do not fall under that category, most notably those with an authoritarian style of government (Majumdar and Villa 2020) . The UN’s Special Rapporteur on Freedom of Religion and Belief has also noted that there are governmental authorities that obstruct freedom of religion under the pretense of using generally accepted limitations, such as public safety, without clear evidence, using the “excuse to limit the rights of persons belonging to a religion or belief community that it finds inconvenient” (United Nations Human rights Council 2023, 27). While the majority of nations curtail freedom of religion for reasons that are widely viewed as permissible, there are various instances where these reasons are abused and the actions taken exceed international norms, with a small number of states consistently restricting the right for reasons regarded as unjustified. Article 1 of the United Nation’s Declaration on the Elimination of All Forms of Intolerance sets the international standard for permissible limitations to the right to freedom of religion as those that “are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981,
3). The United Nations further clarified these restrictions in paragraph 12 of the Commission on Human Rights resolution 2005/40 and paragraph 14 of the Human Rights Council resolution 6/37, stating that these limitations must be “applied in a manner that does not vitiate the right to freedom of thought, conscience and religion,” only being applied for its intended purpose, in a proportionate manner.
The Pew Research Center (PRC), a nonpartisan American think tank, produces annual reports analyzing the extent to which governments and societies around the world impinge on religious beliefs and practices, including countries that curtail the right for reasons not justified under international human rights law. It noted that “the global median level of government restrictions on religion – that is, laws, policies and actions by officials that impinge on religious beliefs and practices – [has] continued to climb” since PRC began tracking the data in 2007. It labeled 56 countries as having “high” or “very high” levels of government restrictions, or “28% of the 198 countries and territories included in the study” (Majumdar and Villa 2020, 5). The report looked at government laws, policies, and actions, as well as acts of religious hostilities by private individuals, organizations, or group societies, finding that “most of the 56 countries with high or very high levels of government restrictions on religion are in the Asia-Pacific region (25 countries, or half of all countries in that region) or the Middle East-North Africa region (18 countries, or 90% of all countries in the region)” (Majumdar and Villa 2020, 3-6). The scores states received depended in part on a series of questions that determined how governmental authorities handled religious freedom, including whether they were discriminatory towards certain religions in law and/or practice, used physical force, or passed laws that impeded the right. The 56 countries designated as having high or very high levels of governmental restrictions were found to curtail freedom of religion excessively, often for reasons that are not viewed as permissible under international human rights law, such as accusing religious practitioners of inciting dissent, engaging in blasphemy, or practicing an unpopular religion in the state, among others (Majumdar and Villa 2020, 10-11).
The Pew Research Center’s report, titled "In 2018, Government Restrictions on Religion Reach Highest Level Globally in More Than a Decade, named China and Iran as having the highest level of government restriction on religion. In China’s case, the report cited the government’s continued “detention campaign against Uighurs, ethnic Kazakhs and other Muslims in Xinjiang province, holding at least 800,000 (and possibly up to 2 million) in detention facilities ‘designed to erase religious and ethnic identities,’ according to the U.S. State Department,” as well as its prohibition of certain religious practices (Majumdar and Villa 2020, 8). The United States Commission on International Religious Freedom further denounced the Chinese government’s implementation of its “sinicization of religion” policy which demands that “religious groups support the Chinese Communist Party’s (CCP) rule and ideology,” punishing those that did not (United States Commision on International Religious Freedom 2022, 1). Iran was similarly criticized for its persecution of religious minorities, including the Iranian government’s continued usage of “antisemitic rhetoric to incite intolerance against Jews”, the sentencing of Christian “on national security grounds”, and repression of Sunni Muslims for arbitrary reasons (United States Commision on International Religious Freedom 2022, 27). These acts have received international backlash, drawing the concern from intergovernmental agencies like the UN, as well as other nations. The other 54 states listed as having high or very high governmental restrictions followed similar trends, making up 28% of the states and territories that were included in the study.
While a minority of governmental authorities actively curtail the right to freedom of religion for reasons that are not viewed as permissible by the international community, there is a larger number of states that do so for generally acceptable reasons but apply it in a manner inconsistent with international human rights law. The UN’s Special Rapporteur on Freedom of Religion and Belief delivered a report to the UN General assembly raising the concern that “the precise extent of such limitations in specific circumstances has become a salient topic in many countries,” with many governmental authorities obstructing freedom of religion under the pretense of using generally accepted limitations (United Nations Human rights Council 2023, 27). The Special Rapporteur recognized the “need to protect public safety and public order” but warns “there is a risk that States will cite them to justify restrictions on [freedom of religion or belief] imposed for reasons tantamount to national security interests, by arguing that a [religious or belief] group is engaged in political activities that endanger public safety and order” (Special Rapporteur 2018, 8). The report asserts that “laws on apostasy or blasphemy, which are often framed as ‘anti-incitement legislation’, [and] exist in at least 69 States, reflect the idea that the expression of certain views within a society may create ‘discontent’, subvert ‘national unity’ or undermine public order and public safety” (Special Rapporteur 2018, 9). They further mention that some “states have also adopted measures to address concerns that some religious publications (both online and off), including sacred texts, may constitute a threat to peace and security”, which can lead government authorities to ban or censor certain religious materials (Special Rapporteur 2018, 9). Critics have recently accused France of engaging in such activity, citing the “controversial Reinforcing Republican Principles Bill, also known as the Anti-Separatism Law,” passed by the National Assembly in 2021 (Freedom House 2022). Freedom House, a nonprofit organization that conducts research, reported that “claiming to combat ‘religious separatism,’ the law allows the government to dissolve religious organizations, increases the surveillance of mosques and Muslim associations, and requires the latter to sign a contract of ‘respect for Republican values’ when applying for state subsidies. Critics have warned that it particularly stigmatizes Muslims and could increase Islamophobic sentiment”
(Freedom House 2022). Though the state’s reasoning for limiting religious freedom may be viewed as permissible (national security concerns, public safety, etc.), these same limitations may become overextended and used in an oppressive manner.
Freedom of religion is protected under international human rights law, which allows for exceptions when limitations are needed to “protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981, 3) . Most states curtail the right for these reasons, however, there is a smaller percentage of countries that do not do so, acting in a more restrictive manner. Additionally, there are states that use the reasons that are generally viewed as permissive but apply it in a manner inconsistent with international human rights law.
References:
Freedom House."France: Freedom in the World 2022 Country Report." 2022.
Majumdar, Samirah, and Virginia Villa. "In 2018, Government Restrictions on Religion Reach Highest Level Globally in More Than a Decade." Pew Research Center, 2020.
Special Rapporteur. "Interim report of the Special Rapporteur on freedom of religion or belief."
United Nations General Assembly, 2018.
UN General Assembly. Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief. OHCHR, 1981.
United Nations Human rights Council. "Rapporteur"s Digest on Freedom of Religion or Belief"
United Nations. 2023.
https://www.ohchr.org/sites/default/files/Documents/Issues/Religion/RapporteursDige
stFreedomReligionBelief.pdf.
United States Commision on International Religious Freedom. "2022 Annual Report." 2022.
After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.
Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.
Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.
Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.
Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.
Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.
References:
Locke, “Letter Concerning Toleration”
Spinoza, The Chief Works of Benedict De Spinoza
Voltaire, Voltaire. Toleration and Other Essays. New York: G. P. Putnam’s Sons, 1755. https://oll.libertyfund.org/title/mccabe-toleration-and-other-essays.
Roger Williams, “The Bloudy Tenent of Persecution”
Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.
The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia”)
As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion.
Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.
Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.
References:
John M. Barry, “God, Government and Roger Williams’ Big Idea,” Jan. 2012, https://www.smithsonianmag.com/history/god-government-and-roger-williams-big-idea-6291280
Gordon A. Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” Transnational Law & Contemporary Problems, Vol. 21, 2012).
Locke, “Letter Concerning Toleration”
Spinoza, The Chief Works of Benedict De Spinoza
Voltaire, Voltaire. Toleration and Other Essays. New York: G. P. Putnam’s Sons, 1755. https://oll.libertyfund.org/title/mccabe-toleration-and-other-essays.
Hegel never addresses 'freedom of religion' by name. But if we examine the contents of this notion in its modern, liberal manifestation, including the freedom of religious practice and the prohibition of state adoption or encouragement of any particular faith (the latter not always being included in this right), we find Hegel has much to say (ACLU, 2023). His discussion of the relationship between religion and state is isolated mainly within §270 of his socio-political treatise, "The Philosophy of Right." In this section, Hegel criticizes both theocracy and a liberal separation of church and state. His disputes are both theoretical and practical. Ontologically speaking, religion and the state are different forms of the same rational activity of "Geist" (spirit or mind) coming to know "absolute truth." Thus, they should not be wholly alienated from one another. And practically speaking, Hegel believes that religion instills in the citizenry an allegiance to the common interest towards which the state aims, making it an essential form of education for any healthy state. But this is not to say that the law should hand over its authority to subjective religious opinion. In Hegel's view, the state retains the right to determine duties, rights, and laws that dictate "worldly life" but may heed religious doctrine insofar as it does not obstruct its rational operations.
We should first understand where the state and religion stand within Hegel's philosophical system. The state falls under the umbrella of "objective spirit;" it is a manifestation of spirit's rationality and freedom in concrete or 'objective' reality (i.e., it takes the form of state institutions and laws). The state, properly understood, is spirit existing in a way that is not only rational but inherently ethical. For this reason, Hegel makes it the highest manifestation of what he calls "ethical life," the stage at which ethics springs from its subjective, 'abstract' form (e.g., that of Kant's abstract morality) and becomes embodied in concrete social and political arrangments, rules, and institutions. As Hegel puts it, the state is "the building of reason into reality;" it is an objective expression of our free, rational spirit where the "end is the universal interest as such and the conservation therein of particular interests” (Hegel 1820, §270).
Hegel acknowledges that one might see the state's outward, worldly domain as distinct from the spiritual, inward orientation of religion. In his view, religion is defined by "intuition, feeling, representational knowledge, [whose] concern is God as the unrestricted principle and cause on which everything hangs;" its realm is the heart, and its object is divinity (Hegel 1820, §270). From this interpretation, one might assume that religion is fundamentally disinterested in the worldly concerns of the state. Yet, Hegel contends that the state and religion are not wholly distinct, differing in "form" but sharing the same "content" (Hegel 1820, §270) The two share the same "content" in being relations of spirit to "absolute truth." Explicating what Hegel means not only by "absolute" but also by "truth" is beyond the scope of this essay. But for simplicity, the reader might think of it as a complete, unified knowledge of reality. Religion is the spirit coming to know the "truth" of God, while the state is the "truth" of spirit rationally expressing itself in the external world. Both enterprises differ in their respective forms truth takes: in religion, knowledge comes in the form of feeling, faith, and mental representations, whereas in the state, knowledge becomes concrete in law, duty, right, and political institutions (Hegel 1820, §270). Religion and state, to Hegel, are the same free, rational truth manifesting in different shapes. Thus to imply, as liberalism does, that the religious and political realms should be completely separate is to deny that these are expressions of a common principle.
But despite this relationship, Hegel warns that religious sentiment should never have authority over the secular state. Because knowledge of the divine takes the form of "subjective idea and feeling… [that] draw a veil over everything determinate," to base the "enduring" character of laws and institutions on it will doom a state to "instability, insecurity and disorder" (Hegel 1820, §270). The religious opinion is internally disclosed and backed only by faith; it is thereby subjective and unfalsifiable (though not necessarily false). Anyone who "seeks guidance from the Lord" may claim that the dictates of the state are immoral and to be opposed (Hegel 1820, §270). Of course, this opposition to the state may remain an unexpressed belief. But it may also devolve into fanaticism that seeks to make religion equivalent to the state, i.e., to establish a theocracy. Hegel notes that when religion usurps the secular sovereignty of the state, "opinion and capricious inclination are to do the deciding" (Hegel 1820, §270). No state can be stable when the mercurial beliefs of religious zealots determine its laws, and thus an equivalency between church and state must be avoided (Hegel 1820, §270).
However, Hegel accepts that the state can incorporate religious ideas into its operations, though ultimately, the state has the final say over whether religious tenets are fit to be incorporated into law. Hegel contends that in the state, religion's "subjective truth" gets comprehended in "determinate thought" rather than faith or feeling (Hegel 1820, §270). For example, a state can make the religious precept "thou shalt not murder" into law, but not because religion says so. The state may look to religion as inspiration for or confirmation of this principle, but ultimately it must make sure this principle is rational of its own accord. To Hegel, the state has no authority over one's inner religious convictions. However, he argues that "when doctrines touch on objective principles, on thoughts of the ethical and rational, then their expression eo ipso brings the church into the domain of the state" (Hegel 1820, §270). So, the state may look to religion as a fount of ethical truth but retains sovereign authority as a secular institution over what religious convictions may rationally become law.
Finally, Hegel supports a relationship between religion and the state on practical grounds. He claims that religion is an "integrating factor in the state, implanting a sense of unity in the depths of men's minds," it imbues the citizenry with a sense of communal belonging that supports the state's function (Hegel 1820, §270). From here, Hegel makes a claim that deeply violates our notion of freedom of religion, claiming that a state should "require that all its citizens to belong to a church" (Hegel 1820, §270). In contemporary liberal thought, freedom of religion implies freedom not to worship. Though Hegel specifies that the state can not establish an official church for its citizens, he seems to believe it holds the authority to mandate participation in religious activities.
We have mapped out a hazy outline of Hegel's views on religion and state: a conception that rejects both a complete separation of church and state and a theocratic unity of religion and law. Religion and state are expressions of the same underlying "absolute truth," and thus should not be wholly alienated from each other. Likewise, religion holds practical benefits for the state, making men conscious of the communal good that the state exists to promote. However, subjective religious ideas can not, as it were, 'take the reins’ of the secular state and its laws. This would, in Hegel's view, lead to a fundamentally irrational and despotic state. It seems Hegel envisions a state whose authority remains independent from religious institutions while still drawing on the truth revealed by religion as such. Further, Hegel shows an inkling of religious tolerance (insofar as a doctrine does not reach into the state's worldly domain). However, he does not respect the right to abstain from religious practice. Hegel's picture of the relationship between religion and state diverges from our modern notion of church-state separation and personal freedom of religious practice, though he is far from supportive of religious principles holding sway over secular, political rationality.
References:
Hegel, Georg Wilhelm Friedrich, and Stephen Houlgate. Outlines of the Philosophy of Right. Oxford World’s Classics. Oxford [UK] ; New York: Oxford University Press, 2008.
According to Article two of the 1964 Constitution of Afghanistan: "Islam is the sacred religion of Afghanistan. Religious rites performed by the State shall be according to the provisions of the Hanafi doctrine. Non-Muslim citizens shall be free to perform their rituals within the limits determined by laws for public decency and public peace."
References:
https://www.constituteproject.org/constitution/Afghanistan_1964 +
According to the 1928 Fundamental Statute of the Kingdom of Albania: "The Albanian State has no official religion. All religions and creeds are respected, and freedom of worship and religious observances is guaranteed."
The current Albanian constitution guarantees religious freedom in Article 10. The Constitution of the Republic of Albania was passed on November 28th, 1998.
References:
1928 Fundamental Statute of the Kingdom of Albania: https://www.hoelseth.com/royalty/albania/albconst19281201.html
1998 Albania Constitution: https://www.constituteproject.org/constitution/Albania_2012 +
Freedom of religion was first guaranteed in the Algerian Constitution of 1963. Article 4 of the document guarantees this right, while also stating that Islam is the state religion.
References:
“The Algerian Constitution.” The Middle East journal 17, no. 4 (1963): 446–450.
“Constitution of Algeria.” World Constitutions Illustrated, Heinonline. Accessed July 19, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzdz0026&i=1 +
Andorra’s 1993 Constitution is the first document in the country’s history to define freedom of religion. Article 6 protect one’s freedom from religious discrimination, while article 11 protects ones right to religious expression.
“Andorra 1993.” Constitute. Accessed July 19, 2023. https://www.constituteproject.org/constitution/Andorra_1993 +
Freedom of religion was first protected by Article 7 of Angola’s 1975 Interim Constitution. It was later replaced by the Constitution of 1992, which also guaranteed the right. Article 10 of Angola’s 2010 constitution declares the country a secular state. Article 23 declares it illegal to discriminate based on religious affiliation. The constitution was ratified on January 21st, 2010.
References:
1975 Angola Constitution: “The Constitution of the People’s Republic of Angola.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.journals/rsl2&i=197
1992 Angola Constitution: https://constitutionnet.org/sites/default/files/Angola%20Constitution.pdf
2010 Angola Constitution: https://www.constituteproject.org/constitution/Angola_2010 +
Antigua and Barbuda’s 1981 Constitution contains the first assertion of freedom of religion in the country’s independent history. Article 11 specifically outlines this right.
References:
1981 Antigua and Barbuda Constitution: “The Republic of Antigua and Barbuda Constitutional Order 1981.” Political Database of the Americas. Accessed July 19, 2023. https://pdba.georgetown.edu/Constitutions/Antigua/antigua-barbuda.html +
Though not explicitly focused on religious freedom, the 1826 Argentina Constitution seems oriented in Article 162 to elements of freedom of belief as a general matter: "The private actions of Men, which do not in any manner offend publick order, nor injure a third Person, belong alone to God, and are exempt from the authority of the Magistracy." A few decades later, according to Juan G. Navarro Floria, the Constitutional language was more direct: "Setting aside the drafts of prior constitutional charters, the authors of Argentina’s 1853 Constitution emphatically proclaimed religious freedom for '[a]ll inhabitants'.” (Floria, 342) The Constitution establishes freedom of religion, but also gives "preferential legal status" to the Roman Catholic Church (U.S. Department of State, "ARGENTINA [[Probable year:: 2018]] INTERNATIONAL RELIGIOUS FREEDOM REPORT").
References:
Constitution of the Argentine Republic, 1826, English translation of the original Constitution of 1826. 956 (2010) Section VIII: General Regulations: https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzar0004&id=15&collection=cow&index=
Juan G. Navarro Floria, Religious Freedom in the Argentine Republic: Twenty Years After the Declaration
on the Elimination of Intolerance and Religious Discrimination, 2002 BYU L. Rev. 341 (2002). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2002/iss2/8
"ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT": https://www.state.gov/wp-content/uploads/2019/05/ARGENTINA-2018-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf +
The 1990 Declaration of Independence of Armenia guaranteed freedom of conscience. The 1995 Constitution of Armenia contains a more detailed assertion of freedom of religion in Article 23: "Everyone is entitled to freedom of thought, conscience, and religion. The freedom to exercise one's religion and beliefs may only be restricted by law on the grounds prescribed in Article 45 of the Constitution. Amendment of the 1995 Armenia Constitution in 2005 resulted in still more specific articulation of the right: "Everyone shall have the right to freedom of thought, conscience and religion. This right includes freedom to change the religion or belief and freedom to, either alone or in community with others manifest the religion or belief, through preaching, church ceremonies and other religious rites." In addition to this articulation of the protection of belief and protection, Article 8.1 of the Armenia Constitution as amended in 2005 "recognizes the exclusive historical mission of the Armenian Apostolic Holy Church as a national church", but also asserts the separation of church and state in Armenia. The same article also guarantees that: "Freedom of activities for all religious organizations in accordance with the law shall be guaranteed in the Republic of Armenia".
References:
Armenian Declaration of Independence: https://www.gov.am/en/independence/
"Constitution of the Republic of Armenia" (1995): http://www.parliament.am/legislation.php?sel=show&ID=2425&lang=eng
"Constitution of the Republic of Armenia (with the Amendments of 27 November 2005)": http://www.parliament.am/legislation.php?sel=show&ID=1&lang=eng +
In accordance with English Common Law, Australia’s Constitution does not clearly guarantee freedom of religion. However, Article 116 of the document orders the “Commonwealth not to legislate in respect of religion.” Additionally, multiple Australian states have adopted laws and constitutions protecting the right.
References:
“The Australian Constitution.” Parliament of Australia. Accessed July 19, 2023. https://www.aph.gov.au/constitution
“2021 Report on International Religious Freedom: Australia.” U.S. Department of State. Accessed July 19, 2023. https://www.state.gov/reports/2021-report-on-international-religious-freedom/australia/#:~:text=In%20Queensland%2C%20Victoria%2C%20and%20the,the%20grounds%20of%20religious%20belief. +
The current Austrian state has maintained the Basic Law on the General Rights of Nationals of 1867, drafted during the Habsburg Empire. This makes Article 14 of the document the first assertion of freedom of religion in the country’s modern history. However, deeper legal foundations for this right can be found in the Patents of Tolerance of 1781/82.
The Constitution of Austria was ratified on October 1, 1920 and reinstated on May 1, 1945. Article 7 bans discrimination, including on the basis of religion.
References:
English original text of the Federal Constitutional Law of 1920 883 (2010), "First Principal Article: General Provisions ," Constitution of the Republic of Austria. - October 1, 1920 : 883-890
“Austria’s Religious Landscape.” Austria Embassy Washington. Accessed July 19, 2023. https://www.austria.org/religion#:~:text=EXPRESSIONS%20OF%20THE%20BASIC%20RIGHT%20OF%20RELIGIOUS%20FREEDOM&text=According%20to%20Austrian%20law%20(Law,choose%20his%20or%20her%20religion. +
Azerbaijan’s Constitution of 1995 contains the first assertion of freedom of religion in the country’s post-Soviet history. In Article 18 all religion is declared equal under the law and Article 25, Article 48, Article 71(4) ban legal discrimination based on religion and grant religious protections. Articles 85 and 89 ban ministers of religion from holding power in the the Milli Majlis or Azerbaijan National Assembly.
References:
https://constitutionnet.org/sites/default/files/Azerbaijan%20Constitution.pdf
Blaustein, Albert P., and Gisbert H. Flanz. Constitutions of the Countries of the World; a Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies. "Azerbaijan Republic, Booklet 2, 1996" Permanent ed. Dobbs Ferry, N.Y: Oceana Publications, 1971. +
The Bahrain Constitution of 1973 contains the first assertion of religious freedom in the country’s independent history. Article 22 articulates this right as follows: "Freedom of conscience is absolute. The State shall guarantee the inviolability of places of worship and the freedom to perform religious rites and to hold religious processions and meetings in accordance with the customs observed in the country." The 2002 Constitution also protects freedom of religion, Article 18 protects against discrimination based on religion. Article 22 protects freedom of religious thought, stating: "Freedom of conscience is absolute. The State guarantees the inviolability of worship, and the freedom to perform religious rites and hold religious parades and meetings in accordance with the customs observed in the country." It is noteworthy that Article 2 states Islam is the official religion and legislation is guided by Islamic Shari’a.
References:
“Bahrain Old Constitution (1973).” International Constitutional Law Project. Accessed July 20, 2023. https://www.servat.unibe.ch/icl/ba01000_.html
https://www.constituteproject.org/constitution/Bahrain_2017?lang=en +
Article 41 of the 1972 Bangladesh Constitution states that: "(1) Subject to law, public order and morality-
(a) every citizen has the right to profess, practice or propagate any religion;
(b) every religious community or denomination has the right to establish, maintain and
manage its religious institutions.
(2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruc- tion, ceremony or worship relates to a religion other than his own.."
References:
http://hrlibrary.umn.edu/research/bangladesh-constitution.pdf +
Barbados’s Constitution of 1966 was the first document to protect freedom of religion in the country’s independent history. The preamble states the country was "founded upon principles that acknowledge the supremacy of God" among other principles. Article 19 grants religious freedoms and protections: "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience and for the purpose of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance."
References:
https://pdba.georgetown.edu/Constitutions/Barbados/barbados66.html +
The Belarus Constitution of 1994 contains the first assertion of freedom of religion in the country’s post-Soviet history. Articles 14, 16, and 31 grant religious freedom and protections. Article 5 bans activities of political parties and public associations with the aim of religious hatred.
References:
https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzby0006&id=4&men_tab=srchresults
https://constitutionnet.org/sites/default/files/Belarus%20Constitution.pdf
https://www.venice.coe.int/webforms/documents/?pdf=CDL(2003)065-e +
Articles 19, 20, and 21 of Belgium’s 1831 Constitution contain the first protections of freedom of religion in the country’s history. Article 24 requires compulsory education to not discriminate based on religion. However, Article 19 states that “offenses committed when this freedom is used may be punished.”
“Belgium’s Constitution of 1831 with Amendments through 2014.” Constitute. Accessed July 20, 2023. https://www.constituteproject.org/constitution/Belgium_2014.pdf?lang=en +
Freedom of religion was first guaranteed in Belize by its Constitution of 1981. Articles 3 and 11 protect religious freedom and equality. Preamble claims the supremacy of God.
“Belize 1981 (rev. 2011).” Constitute. Accessed July 20, 2023. https://www.constituteproject.org/constitution/Belize_2011 +
Freedom of religion was first specifically outlined in Article 135 of Benin’s 1977 Constitution. However, its predecessor, the Constitution of Dahomey (1965) did state that the country “guarantees the freedom of speech, press, assembly, association, procession and manifestation.” Under the 1990 Constitution of Benin, Articles 23 and 26 offer freedom of religion and prohibit religious discrimination under the law. Articles 2 and 5 define Benin as a secular state.
“Constitution of Dahomey.” World Constitutions Illustrated, Heinlonline. Accessed July 20, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzbj0002&i=1
“Fundamental Law of the People’s Republic of Benin.” World Constitutions Illustrated, Heinlonline. Accessed July 20, 2023. https://heinonline.org/HOL/P?h=hein.cow/zzbj0035&i=3
https://www.constituteproject.org/constitution/Benin_1990.pdf?lang=en +
Jeremy Bentham (1748-1832) was an English philosopher whose work would prove foundational to the development of modern liberalism, as both a moral and a political vision. Bentham’s unique brand of liberalism is most strongly associated with his guiding principle of utilitarianism: that what is best is what brings the most utility to the greatest number of people. Despite what might today be recognized as problematic implications of an absolute adherence to this principle, Bentham’s utilitarianism made him a strong advocate of social and political freedoms, under the reasoning that these freedoms are a net good to society.
Bentham defines his utilitarian philosophy in his 1781 tract An Introduction to the Principles of Morals and Legislation. By his central concept of utility, he means “that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this in the present case comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered” (Bentham 1781, 14-15). Notably, he insists that utility can only accrue to the individual: “The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. … The community is a fictitious body, composed of the individual persons who are considered as constituting, as it were, its members. The interest of the community then is, what is it? —the sum of the interests of the several members who compose it” (Bentham 1781, 15). Therefore, a good government is one that acts in the ultimate interests of its individual constituents, and not for some vague notion of the good of the community or the state.
Presaging his protege John Stuart Mill, Bentham seeks to defend press freedom through the lens of his utilitarian ideal. Bentham identifies an unfettered press as the essential guarantor against what he terms misrule, by ensuring protection against government oppression and the accountability of leaders to the people they represent. This is perhaps best seen in his commentary on the suppression of liberal movements in Spain, and by extension in his native England as well. Referring to a report of a Madrid newspaper editor being prosecuted for his work, Bentham declares that “whatsoever evil can ever result from this liberty [of the press], is everywhere, and at all times, greatly outweighed by the good” (Bentham 1820). This is because the liberty of the press “operates as a check upon the conduct of the ruling few; and in that character constitutes a controlling power, indispensably necessary to the maintenance of good government” (Bentham 1820). To Bentham, the benefits of good government are “plainly infinite” (Bentham 1820).
Bentham does not further elaborate on these benefits in his letter on the situation in Spain, but elsewhere in his work he consistently identifies good governance with participatory democracy, with the ability of the people to impact their government, and consequently with freedom in the broadest sense. For Bentham, “in the late stages of his long career nothing was more important to ‘good politics’ than the influence of public opinion on those with political power” (Cutler 1999, 322). He even wrote of an (allegorical) Public Opinion Tribunal that would issue “judgments” of politicians, to ensure that politics takes the people’s unfiltered and all-inclusive sentiments into account: “No one can know her interests better than herself. Thus, if a utilitarian public policy is to emerge from an aggregation of those interests, the constitution should provide the institutions that permit all persons to communicate their interests to government equally” (Cutler 1999, 324). Unlike many of his contemporaries, Bentham places such high value on government by and for the people, that he insists that the government has a duty to be responsive to the people even when public opinion is misguided. He was not naïve; to him, “[self-determination] does not require certainty in [the people’s] judgments of prospective utility … The institutions of government, therefore, ought to allow the public to react to what their government is doing, constantly steering closer and closer to providing for their interests” (Cutler 1999, 324).
When it comes to the purported harms of a free press, Bentham points out that prosecutions for criticizing the government are traditionally justified as a response to an insult to the honor of the state or its functionaries, and that this is regarded as a threat to the integrity of the state (Bentham 1820). Indeed, rulers have historically tended to punish defamation of the government or its representatives more harshly than defamation of private individuals, and to treat aspersions cast on the government as a whole or on a higher ranked official as more serious than those cast on a lower ranked official. Bentham considers this nonsensical: he argues that the harms to a discrete number of high-profile individuals who may find themselves maligned are far eclipsed by the much greater benefits that a free press brings to a much wider range of people. He even notes that public figures who find themselves unfairly targeted by the press have a built-in remedy commensurate with the rank of their position, since their status affords them distinct advantages in rebutting any allegations, which a private person does not have (Bentham 1820).
Moreover, far from handicapping the function of the state by impugning its reputation, a free press actually does the opposite. For a real world illustration of his reasoning, Bentham points to the United States, where the freedom of journalists to speak against the government is not only constitutionally protected but considered inalienable from public life, but which he nevertheless considers better governed than even his own country; he even calls the young nation the only country that truly has good governance. Thus, Bentham elucidates a utilitarian account of freedom of the press: the cumulative benefit to individuals is far greater than the cumulative harm. Put another way, in an ideal government where one can feel assured that the laws are just, a good citizen’s aim should be “to obey punctually; to censure freely” (Schofield 2019, 43).
Bentham does recognize narrow circumstances where the press can be censured for defamation, but he holds that this punishment should be applied in the reverse of how it has typically been: defamation of a private person should be treated as more severe than defamation of a state official. In fact, Bentham lays out a standard of proof for defamation of a public figure that is remarkably similar to the actual malice standard laid out by the US Supreme Court more than a century later: namely, the statement in question must be not just untrue but “the result of willful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Schofield 2019, 45). Presumably, he would likewise support the modern jurisprudence that mere negligence of the falsity of a statement is sufficient proof in the case of a non-public figure.
Benthamite utilitarianism, it must be said, does not necessarily anticipate all the problems with today’s mass media and its role in guiding the reins of government. For one thing, Bentham does not consider that the press does not just report public opinion but shapes it (often quite intentionally); he also does not ask how public policy should incorporate the views of experts when they conflict with the public mood, or how it should protect the right of minority views to also be heard and compete for influence. Nonetheless, Bentham’s work offers a straightforward and persuasive account of the value of a press free from state interference, giving a highly compelling defense of this fundamental human right at a time of conservative retrenchment and reaction throughout Europe.
References:
Bentham, Jeremy. 1781. An Introduction to the Principles of Morals and Legislation. Kitchener, Ontario, Canada: Batoche Books Limited, 2000.
Bentham, Jeremy. October 7, 1820. “To the Spanish People: Letter I.” Classical Utilitarianism Website, University of Texas, September 24, 2003, https://www.laits.utexas.edu/poltheory/bentham/bsp/bsp.l01.html
Cutler, Fred. “Jeremy Bentham and the Public Opinion Tribunal.” Public Opinion Quarterly, 63, no. 3 (1999): 321-346, https://academic.oup.com/poq/article-abstract/63/3/321/1902496?redirectedFrom=fulltext#no-access-message
Schofield, Philip. “Jeremy Bentham on Freedom of the Press, Public Opinion, and Good Government.” Scandinavica, 58, no. 2 (2019): 39-57, https://discovery.ucl.ac.uk/id/eprint/10105424/1/13223-jeremy-bentham-on-freedom-of-the-press-public-opinion-and-good-government.pdf
According to Article 7.4 of the 2008 Constitution of the Kingdom of Bhutan, "A Bhutanese citizen shall have the right to freedom of thought, conscience and religion. No person shall be compelled to belong to another faith by means of coercion or inducement."
References:
2008 Constitution of the Kingdom of Bhutan: "Article 7: Fundamental Rights," Constitution of the Kingdom of Bhutan, 2008, 14: https://heinonline-org.proxygw.wrlc.org/HOL/Page collection=cow&handle=hein.cow/zzbt0002&id=22&men_tab=srchresults +