Category Archives: Freedom of Speech

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Media Studies 104A - 2015-02-10
Media Studies 104A, 001 - Spring 2015 Freedom of Speech and the Press - William B Turner Creative Commons 3.0: Attribution-NonCommercial-NoDerivs.

By: UCBerkeley

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Media Studies 104A - 2015-02-10 - Video

The topic of free speech is one of the most contentious issues in liberal societies. If liberty of expression is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech (in the sense of unlimited speech). Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, free speech in short, is not an independent value but a political prize (1994,102). No society has yet existed where speech has not been limited to some extent. Haworth (1998) makes a similar point when he suggests that a right to freedom of speech is not something we have, not something we own, in the same way as we possess arms and legs. Speech is important because we are socially situated and it makes little sense to say that Robinson Crusoe has a right to free speech. It only becomes necessary to talk of such a right within a social setting, and appeals to an abstract and absolute right to free speech hinder rather than help the debate. At a minimum, speech will have to be limited for the sake of order. If we all speak at once, we end up with an incoherent cacophony. Without some rules and procedures we cannot have a conversation at all and consequently speech has to be limited by protocols of basic civility. It is true that many human rights documents give a prominent place to the right to speech and conscience, but such documents also place limits on what can be said because of the harm and offense that unlimited speech can cause, (I will discuss this in more detail later). Outside of the United States of America speech does not tend to have a specially protected status and it has to compete with other rights claims for our allegiance. John Stuart Mill, one of the great defenders of free speech, summarized these points in On Liberty, where he suggests that a struggle always takes place between the competing demands of authority and liberty. He claimed that we cannot have the latter without the former:

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to other important ideals such as privacy, security and democratic equality and there is nothing inherent to speech that suggests it must always win out in competition with these values. Speech is part of a package deal of social goods: speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good (Fish, 1994, 104). In this essay, we will examine some conceptions of the good that are deemed to be acceptable limitations on speech. We will start with the harm principle and then move on to other more encompassing arguments for limiting speech.

Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the slippery slope. Those who support the slippery slope argument claim that the consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should not allow any removal of government interventions because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as solitary, poore, nasty, brutish, and short (1968, 186).

Another thing to note before we engage with the harm principle is that we are in fact free to speak as we like. Hence, freedom of speech differs from some other types of free action. If the government wants to prevent citizens engaging in certain actions, riding motor bikes for example, it can limit their freedom to do so by making sure that such vehicles are no longer available; current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published their thoughts. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree at the very moment she performed an action. The government would have to remove our vocal chords for us to be unfree in the same way as the motorcyclist is unfree.

A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it more difficult and potentially more costly to exercise our freedom. Such sanctions take two major forms. The first, and most serious, is legal punishment by the state, which usually consists of a financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction comes from social disapprobation. People will often refrain from making public statements because they fear the ridicule and moral outrage of others. For example, one could expect a fair amount of these things if one made racist comments during a public lecture at a university. Usually it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill provides a strong warning about the chilling effect of the latter form of social control.

We seem to have reached a paradoxical position. I started by claiming that there can be no such thing as a pure form of free speech: now I seem to be arguing that we are, in fact, free to say anything we like. The paradox is resolved by thinking of free speech in the following terms. I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits, and the next sections of the essay look at some possible solutions to this puzzle.

Given that Mill presented one of the first, and still perhaps the most famous liberal defense of free speech, I will focus on his claims in this essay and use them as a springboard for a more general discussion of free expression. In the footnote at the beginning of Chapter II of On Liberty, Mill makes a very bold statement:

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

Such liberty should exist with every subject matter so that we have absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons.

These are powerful claims for freedom of speech, but as I noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is one very simple principle, now usually referred to as the Harm Principle, which states that

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Freedom of Speech (Stanford Encyclopedia of Philosophy)

On September 25, 1789, the First Congress of the United States proposed 12 amendments to the Constitution. The 1789 Joint Resolution of Congress proposing the amendments is on display in the Rotunda in the National Archives Museum. Ten of the proposed 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 312) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 was never ratified.

Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz. ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third... 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.

Article the fourth... A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth... No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Bill of Rights Transcript Text - National Archives and ...

Twitter is extremely popular in Turkey with 12 million users in a nation of nearly 75 million - the total Twitter user population is 288 million, according to the Financial Times.

Overall, Twitter said demands by countries for content removal from the microblogging website were up by 40 per cent in the last six months of 2014.

The decision to block Twitter in March 2014 came after audio recordings allegedly revealed corruption among those close to Recep Tayyip Erdoan, the then Turkish prime minister. They had been widely shared on Twitter.

It was a tense period ahead of the country's local elections and despite the outrage and upset the ban caused, the leading Justice and Development Party (AKP) won the majority of votes. Mr Erdoan became president in August.

Recep Tayyip Erdoan with a picture of Ataturk, the father of the Turkish republic (Reuters)

According to Twitter's report, the United States topped a list of countries' governments requesting account information - Turkey came second with 356 requests made and in the UK, 116 requests were made.

Meanwhile, more than 90 per cent of tweets withheld after requests from authorities, courts and others, were made in Turkey. A total of 1,982 tweets were withheld, 1,820 within Turkey.

The report had been released on Friday but appeared to be premature, and was removed. The full report was published on Monday and shows an increase in removal requests in total.

Facebook's transparency report for the first half of 2014 further illustrates the attack on freedom of expression online in Turkey. 1,893 pieces were successfully censored in Turkey and only India was higher with 4,960 pieces.

Since the Gezi protests in the summer of 2013 and the breakdown in relations between exiled preacher Fethullah Gulen and Mr Erdoan, individuals' right to freedom of expression is more limited, especially for journalists.

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Turkey's crackdown on freedom of speech intensifies