PM5620: Concerning Free Speech

Free speech or freedom of speech refers to the idea that one should be allowed to express one's thoughts or opinions, with only the minimal necessary limitations. However, which limitations are necessary and which are not is a fiercely disputed question. Most people agree that freedom of speech should be significant in its scope; most people also agree that there have to be some limitations imposed, for the protection of others and of society as a whole; the dispute is concerning which limitations are necessary and which are unjustified.

Maratreanism believes in free speech, but reasonable limitations can be placed upon it. For example, the death penalty is a form of most wicked murder, and advocacy for the death penalty is incitement to murder. Incitement to murder must be prohibited. Hence, free speech does not include the right to advocate for the death penalty.

Many countries provide protection of freedom of speech in their constitutions - the most famous such clause is the First Amendment to the US Constitution. It is also guaranteed by a number of international treaties - the most notable of these would be the International Covenant on Civil and Political Rights (a global treaty adopted by the United Nations) and the European Convention on Human Rights (a European treaty adopted by the Council of Europe).

The term 'speech' is commonly used broadly, to include not just words and writing, but also images, photographs, film and video, computer games, signs in protests, etc. Related concepts are freedom of the press, which refers specifically to journalists and newspapers; and freedom of association, which includes the right to hold meetings, public assemblies, and protests. Another term, broadly equivalent, is freedom of thought.

Some forms of speech commonly restricted include (in no particular order):

  • a classic example, taken from the jurisprudence of the US Supreme Court, is falsely shouting fire in a crowded theatre. Most people agree that such speech - speech which poses the immediate threat of severe chaos and public disorder, and otherwise serves no good purpose - can be prohibited
  • making false statements with the purpose to deceive or cheat others - e.g. fraud
  • making false statements to government authorities, especially in court - e.g. perjury
  • urging violent or criminal acts, e.g. a mob boss asking for someone to be murdered. Many countries draw a distinction between speech urge a particular and immediate criminal act, vs. speech which just advocates crime in general. For example, the former is illegal in both the US and Australia; the later is constitutionally protected as free speech under US law, but subject to censorship and prosecution under Australian law
  • speech which reveals secrets of national security
  • speech which reveals corporate private information - trade secrets
  • speech which reveals personal information of private individuals without a valid justification - invasion of privacy
  • the following prohibitions are often collectively termed 'hate speech':
    • speech which insults religion - blasphemy - or even just speech which disagrees with another religion, or with a religion with government endorsement
    • speech which urges hatred of racial or ethnic groups
    • speech seen to criticize a particular gender
    • speech seen to criticize a particular sexual orientation (especially homosexuality or bisexuality)
  • making false or unproven negative statement about an individual or business - defamation, slander, libel
  • speech urging violent overthrow of the government - sedition
  • speech which is sexually graphic in nature - pornography, indecency, obscenity
  • speech which depicts the sexual abuse of children (child pornography)
  • speech advocating or instructing in the use of drugs
  • speech containing vulgar/offensive language
  • speech which criticises the government or government policy, or questions the government's official version of events
  • speech containing graphic depictions of violence
  • speech which might harm children were they to hear/see it
  • speech which conveys false ideas about religion, such as advocating heresy or religions the government considers false
  • speech which advocates for political systems the government disapproves of - such as pro-capitalist speech in a Communist country
  • speech denying or question the history of certain historical events, including genocides such as the Nazi Holocaust
  • speech advocating or condoning terrorism
  • speech containing instructions on how to commit terrorist or violent acts, e.g. bomb-making manuals
  • speech falsely claiming to have received military decorations
  • speech showing graphic images of abortion procedures or the unborn
  • protests at funerals - as practiced in particular by the Westboro Baptist Church; the US Supreme Court ruled in 2011 in Snyder v. Phelps that it was their free speech right to do so - although critics charged the right to free speech does not extend to actions as blatantly uncivil, offensive and hurtful as to protest a funeral

Most people would agree that at least some of the above restrictions are valid - few people would agree that they all are. The problem is how to decide which restrictions are reasonable and which restrictions are not - opinions differ from person to person and from worldview to worldview. Every country needs to strike a balance between free speech and other competing concerns; but different countries strike that balance in different ways.

Another issue is how are legal restrictions on speech to be enforced. One system, known as prior restraint, requires government censors to review publications for legal compliance before they can be published. This system is very common in totalitarian regimes. Even in non-totalitarian societies, it still sometimes exists, but not to the same extent - for example, the Australian government requires films and computer games to be reviewed by government censors before publication - although the same requirement is not imposed on many other forms of media, such as newspapers, television, radio or the Internet. The US represents a very different approach - the US Supreme Court has found that prior restraint is unconstitutional. So, the system of film and computer game censorship which exists in Australia would not be permitted in the US without amending the constitution. The alternative approach, is to not impose pre-publication restraints, but then provide for legal processes to deal with violations after they occur - either through civil suits or criminal prosecution. Even in countries where pre-publication restraints exist, post-publication restraints are also needed, since it is impossible for government censors to approve all speech before it occurs