Kent Freedom of Expression Feb 2015
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Speech Rights, Speech Wrongs
© Onora O’Neill
Rights to freedom of speech and to press freedom, and latterly to
‘freedom of expression’, have become so central to discussions of
the rights and wrongs that bear on communication that they may seem
to define and limit claims about speech rights—and speech wrongs.
However, disputes about which types of speech, ranging from lying
to hate speech, from intimidation to breaches of privacy, from
causing offence to defamation, should permitted and which
prohibited, cannot be resolved merely by appealing to a generic
right to freedom of expression. They also require clarity about other
rights, about the diversity of speech acts, and about the diversity of
communication technologies.
1.
Speech Rights in Transition
I begin with some very short comments on reasons to think carefully
and fundamentally about speech rights and speech wrongs today—the
more so at a time at which the murderous attack on Charlie Hebdo
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and others has challenged free speech in a most brutal and
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fundamental way.
First, it is worth noting that early modern arguments for aspects of
freedom of expression never use that C20 phrase. The arguments of
the Reformation and the Enlightenment are instructive, but focus
only on specific aspects of freedom of expression.
these arguments were
Many of
not about rights – let alone universal
rights—but about duties, and in particular about duties to tolerate
others’ speech even if it was false or wrong, that is even if others had
no right to speak or publish in certain ways. Many are arguments
for speech rights in specific areas, such as
freedom of worship and
arguments
rights to free speech,
press freedom (Federfreiheit). Some
are directed only at
speech that makes truth claims,
and stress the importance of protecting and fostering
the discovery
and communication of truth, especially in religion or in science.
These classical arguments are not irrelevant today, and they are often
bought up in discussion of freedom of expression, but can offer at
most selective justification for
freedom of expression.
A focus solely of rights to speak or to publish is now too narrow.
The last century has seen the development of film, telephony, radio
and television; the last 40 years the rise of the internet and mobile
telephony;
the last 20 years the wider
penetration of
these
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communication technologies, and the rise of globalised marketing
and social media. In the background there are ongoing revolutions
in technologies, including technologies of encryption, and
reconfigurations (mostly not relocations) of boundaries, whose
reconfigured porosity allows some
agencies to insulate themselves
powerful agents and
from the rule of law and so from the
enforcement of others’ rights.
This is where we have got to, and I do not think it is a coincidence
that a remarkable proportion of the more intractable current disputes
about policy and legislation are about ways in which speech rights
should be protected and regulated by law. For example, there has
been and there will be more legislation on surveillance and privacy;
on copyright and open access; on transparency and encryption; on
data protection and freedom of information; on open data and
intellectual property; on online privacy and online anonymity; on
defamation and trolling; on cyber fraud and identity fraud of countless
ingenious varieties. It is tempting to wade into discussion of the
technologies, but probably more useful to start by
reconsidering
the underlying arguments for specifying what may and may not be
done with words. Which speech rights should people have? Where
may speech rights be restricted, and for which reasons?
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2. Speech Acts and Speech Content
As a first point, I think it is useful to note that speech rights protect
and prohibit types of speech act, rather than types of speech content.
In the past some restrictions focussed on speech content. In some
cultures certain words were taboo; in our own, legislation on
blasphemy and obscenity—now largely repealed or obsolete—aimed
to regulate some sorts of speech content. But legislation operates
primarily by requiring or prohibiting, sanctioning or rewarding certain
types of action, and it is rarely feasible to do so by proscribing or
regulating all uses of specific types of content. 1 Attempts of regulate
speech content have often foundered because parody and euphemism,
satire and pseudonyms, allow people to convey ostensibly prohibited
content, while keeping within the law. 2 The Censor’s life is not a
happy one.
3
Individuals and
institutions enjoy determinate speech rights when
permitted and prohibited types of speech act are clearly distinguished,
and
1
interference with permitted speech, whether
by prior restraint
That does not stop people trying. Cf. the data protection approach to privacy protection
which assumes that it is possible to separate personal from non personal content.
2
For examples consider Private Eye, or the C18 publishers who printed forbidden books
outside France, and sold not only political but erotic literature under the useful euphemism
‘livres philosophiques’, Robert Darnton, The Great Cat Massacre and Other Episodes in
French Cultural History 1984
3
Robert Darnton, Censors at Work; How States Shaped Literature, NY 2014.
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or by retrospective sanction, is prohibited, and (if well
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institutionalised) effectively prevented. In drawing this line, certain
types of speech act will be classified as speech wrongs and be
prohibited (think of speech acts that defraud, intimidate, incite
violence, defame, or abuse, for starters) and others will be permitted
and protected.
for
Freedom of expression has become the generic term
rights that are to protect a wide range of speech acts, both
individual and institutional. These rights may protect speech that is
spoken, written,
imaged or enacted; that is
face to face or
technologically mediated; that reaches or fails to reach
varied
audiences.
3. Speech Rights as Human Rights
The right to freedom of expression is the central speech right
proclaimed both in the United Nations Universal Declaration of
Human Rights (UDHR, 1948) and in the European Convention on
Human Rights (ECHR, 1950), whose standards have
(supposedly)
been given more definitive form in subsequent international
conventions and implemented in national legislation (enforced with
varying enthusiasm and efficacy). Freedom of expression is now
standardly cited as the default and overarching speech right, both for
individuals and for the media, and is deeply entrenched in
contemporary liberal cultures and legislation.
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4
And has long been assimilated into First Amendment jurisprudence in the US. Thomas Emerson The System
of Freedom of-expression, NY, Vintage 1970.
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The Universal Declaration articulates the
right to freedom of
expression for individuals in the following words:
Everyone has the right to freedom of opinion and-expression;
the right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through
any media regardless of frontiers (UDHR, 1948: Art 19)5
The same emphasis on the rights of individuals is central to Art 10 of
the European Convention of Human Rights (ECHR), drafted some
two years later than UDHR. The first clause runs:
10 (1) everyone has the right to freedom of expression … This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers… (ECHR 1950)6
Following the standard format of the European Convention, Art 10
(2)
also lists permissible types of restriction on this freedom:
10 (2) 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.
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It is notable but not surprising that the media appear here not as right holders, but as
supporting the rights of individuals.
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Once again, media rights are seen as supporting individual rights.
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Freedom of expression is a qualified, not an absolute right. Clearly
what matters is to understand which qualifications are necessary and
proportionate, and how they can best be enshrined in law. And yet,
as you all know, there are endless protagonists of freedom of
expression who imagine that
matters can be settled merely by
invoking freedom of expression. I think this is where arguments have
to begin rather than end.
4. Freedom of Expression and Self Expression
Evidently the generic right to freedom of expression set out in UDHR
and ECHR is not the same as
the right to self-expression for which
John Stuart Mill argued so memorably in
Ch 1 of On Liberty, and
which still plays a central part in English language debate. The two
rights
are often conflated. In
well known passages
Mill
argued for strong individual rights of self-expression as essential
in order to recognise
‘the permanent interests of man as a
progressive being’, and to respect
individuals’ ‘sovereignty
over their own minds and bodies’. Respect for this ‘sovereignty’, he
argued, requires that harmless
self-expression
not be restricted,
even if (for example) unintelligible, untrue, or cavalier about
evidence, or about the other disciplines of truth seeking. Rather
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...the sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of any of their
number, is self-protection. 7
Mill describes
acts of self-expression as
(we might now say
self-regarding
self-affecting), and points out that they
typically harm no others and
should be restricted only where
(exceptionally) they cause or risk harm to others (shouting ‘fire!’ in
a crowded theatre; slander; libel). In all other cases, he concluded,
individuals should enjoy
…absolute freedom of opinion and sentiment on all subjects,
practical or speculative, scientific, moral, or theological’,
Whether this is a coherent position depends on the feasibility of
assessing the harm likely to be created by types of speech act. The
harm caused by
token speech acts of a given type can
varied, and claims about expected harm will
be highly
often defy
calculation.8 This has not prevented the harm principle from entering
popular culture, as a supposed criterion not merely for self expression
but for freedom of expression.
Mill’s claims about individual self expression may be convincing, and
may still have huge cultural resonance. But they cannot be adapted to
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8
Ibid. 13.
Judges seek to assess the harm of particular acts, but even they may quail about assessing
the likely harm of act types. Lee Boland also Scanlon
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justify
press or media freedom, for two reasons. First
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institutions have no selves, so do not engage in self-expression.
Institutional speech is directed, successfully or unsuccessfully, to
audiences: to think of it merely as self-expression would mislead.
Secondly an assumption that media (or other institutional speech) is
generally harmless would be naïf. It may be tempting for the media
to insist on maximal speech rights while representing —or rather
misrepresenting — their speech as trivial and harmless. But this
does not fit the realities of media power, or more generally of
institutional power, nor the steps typically taken to constrain other
types of institutional communication. Claims that
media speech
rights should parallel individuals’ rights to self-expression do not
convince.
How then should the freedom of expression
be
configured? How should it be differentiated for individuals, for the
media and for other institutional actors?
5. Interpreting Rights, Implementing Rights
How else might we seek to justify a determinate configuration of
freedom of expression? I suggest we might start from two obvious
features of the human rights set out in the Declaration (and the 1966
Covenants). Human
rights are intended to set standards
for
everyone. Second human rights are not to be considered one-right-ata-time: each right holder is to enjoy all rights.
We might say
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that human rights are intended to be doubly universal: all rights for all
human beings.
However, these two formal requirements do not appear to show why
we should accept the standard list of human rights. However,
many are prepared to accept the canonical lists. I suggest that this is
not because they are confident that these are the right lists, let alone
demonstrably the right lists, but rather because the rights listed are
highly indeterminate, so that
some interpretation of
virtually all of
them would be included in any plausible list of universal rights.
The magic that secures such widespread agreement to human rights
is largely that the lists set out in UDHR allow people to bracket
much that is contentious or about which they disagree.
So it is not after all very surprising that so many who think that
human rights standards require deeper justification are nevertheless
quite accepting of the UDHR list. It does not follow that there is wide
agreement about which of many possible interpretations of the rights
listed is to be preferred. There are persistent disputes about the
adequacy or inadequacy of interpretations of freedom of expression
and rights to privacy, indeed of rights to life and rights to security,
which illustrate the point.9
The UDHR list of rights poses rather
than resolves difficult questions of justification, in declaring many
9
Cf. earlier disputes about the right to work (a free labour market or the right to be
assigned a job?—a major dispute between market and centrally planned societies before
1990) and current disputes about the right to marry (opposite sex partners only, or same
or opposite sex partners?).
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qualified rights that have to be adjusted to one another.
questions can only be
for
addressed by
Those
selecting and arguing
more specific interpretations of each indeterminate right.
6 Human Rights are for Everyone.
Any coherent interpretation of the UDHR rights has to satisfy at least
three formal constraints.
It must find consistent
interpretations of the various rights held by each person; consistent
interpretations of each person and others’
like rights; and
interpretations of the rights of each person that are consistent with the
action needed to secure respect for those rights.
An immediate corollary of
requiring that any interpretation of
rights for all be consistent in these three respects is that few rights can
be seen as unconditional. At most a few
important liberty rights
might be interpreted as absolute. The right not be tortured and the
right not to be enslaved are often said to be
absolute, meaning
that no other consideration, and no other right, provides an acceptable
reason for restricting them. But most
human rights
constrained in numerous
the rights of each person are to
ways if
have to be
be compatible with one another, compatible with others enjoying the
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same rights, and compatible
realise those rights.
with the
action needed to respect or
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The task of interpreting human rights, other than the few that may be
absolute, is
sometimes described
as a matter of balancing one
right against others. This metaphor misleads. Its proper use is in
characterising judicial decision-making
about particular cases,
where balancing considerations is a matter of taking the multiple
facts of the case into account. In considering the justification of
interpretation human rights we are not dealing with particular cases,
but with principles, and since there is no particular case, there are no
facts of the case to be balanced. There is no metric for rights,
analogous to the metrics used for physical balances. What is actually
required is in the first place an interpretation of each right that
adjusts it to others held by the same individual, takes account of the
fact that each right is to be enjoyed by all, and does not obstruct or
prevent the action that respect for each right of all others requires—
i.e. allows for the performance of the
counterpart duties needed to
make a reality of rights.
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It is common to speak of some non-absolute rights as limited and others
as qualified.
Some human rights may be limited by statue, as the right
to liberty is limited by legislation that specifies when a prison sentence or
detention for reasons of mental health is permitted. Other human rights may
be qualified for wider reasons than those set out in statute, such as the need to
protect the rights of others or wider society.
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Difficult questions must be decided. For example, what line should
be drawn between rights to freedom of expression and rights to
privacy? When can protection of rights to
liberty and security
justify restrictions of freedom of expression? How should freedom
of expression be adjusted to protect rights to a fair trial?
Under
what circumstances does retention of or access to others’
communications breach rights to privacy?
Under which
circumstances does it not?
There are nevertheless some cases in which matters are not
particularly difficult, and one of those has been prominent recently.
We have heard it said that there is no right to speak in ways that
offend. Our legislation, I think correctly, does not restrict speech
merely because it offends some others. Offence is a subjective
matter, and what offends A may not offend B. There is therefore no
way of securing robust forms of freedom of expression that is
compatible with recognising a right not to be offended. Speech acts
that incite hatred, or that intimidate, or that defraud, or that abuse, can
be regulated without putting freedom of expression at the mercy of
others. But there can be no right not to be offended. While we may
often choose to speak in ways that will not offend, for good reasons
(kindness, or good manners) or for bad reasons (currying favour,
condescension), those reasons do not and cannot include a supposed
right not to be offended.
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7 Constraints and Justifications
In solving problems it sometimes
fewer constraints, since this
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helps to have more rather than
narrows down the range of
possibilities. We are all familiar with
equations that can be solved
once one knows enough constraints, and with crossword puzzles,
where solving each clue
easier to complete
constrains possibilities and
the puzzle.
makes it
Justifications of specific
interpretations of human rights can, I suggest, make headway by
focusing on the necessary constraints on interpreting
rights that can
be rights for all.
The power of consistency constraints is easily missed if one tries to
think about rights or their interpretation
one-right-at-a-time. Even
the first of these consistency requirements—that the several rights of
a given individual be mutually consistent – cannot be resolved by
thinking about an individual’s rights one-by-one.
If we consider
rights one-at-a-time it would be tempting to imagine that the best
interpretation of each right must be a maximal interpretation.
However, this would overlook what is needed for individuals to
enjoy other rights, and for others to enjoy like rights. If A had a
maximal right to liberty, she could not also have a right to security,
since some measures required to protect her security would
restrict her liberty. If A had a maximal right to freedom of
expression, B could not enjoy any right to privacy. And so on.
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The second consistency requirement sets even more powerful
constraints on any adequate interpretation of rights. Human rights
are
rights for everyone—for all human beings, not merely for
some privileged ones. So no interpretation of
rights can
endorse supposed rights could be held only by some, but not by all: if
rights are universal, it must be possible for others to hold like rights.
There cannot, for example, be universal rights to positional goods:
there can be no universal
right to win, to be the richest, or the best,
or to enjoy upward social mobility. (None of us lives in the magical
world of Lake Woebegon, where all the children are above average).
If rights are universal we must reject
as spurious any interpretation
of a right under which it could not be held by all. Nor can any
adequate interpretation of rights endorse supposed rights whose
successful exercise would prevent others
from enjoying like rights:
there can therefore be no rights to coerce, to destroy, or to
control others, since they would all evidently undermine others’
like rights. Nor can anybody’s freedom of movement be interpreted
as an unrestricted right to occupy any chosen location on the surface
of the earth—since this would be incompatible with others enjoying a
like right.
Here the fact that rights are not to be considered one-right-at-atime
filters out many possibilities:
A’s right to privacy must be
construed in ways that are compatible with B’s right to a fair trial; C’s
right to liberty must be construed in ways that are consistent with D’s
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right to security;
E’s right to food must be construed in ways that
are consistent with F’s rights to grow and sell food,
and so on and
on.
A third powerful consistency constraint on any adequate
interpretation of rights arises from the fact that rights cannot be
respected or realised unless some others — individuals or institutions,
depending on the case— are required to discharge the counterpart
duties that can realise the right. However it they are required to act
and forbear in ways that realise the right in question, it must remain
possible for them to do so.
No way of adjusting rights to one
another can guide action unless it also leaves room for the action
and forbearance required if
rights are to be respected or
realised. So any adequate interpretation of human rights (for a given
society at a given time ) has to take a clear view about whose action is
required to respect those rights, and cannot prescribe requirements
that obstruct respect for and realisation of rights. In thinking about
these questions we have to ask not only which rights can consistently
be held by all, but also which counterpart duties on others (themselves
right holders) are compatible with everyone’s
rights. It is not
enough merely to accept or assume that everyone has each listed
right:
rights shorn of counterpart duties are no more than
rhetoric and gesture, and the fundamental task of justifying rights is to
find an interpretation under which each person can coherently have all
of a range of rights, and these rights are not mere rhetoric because
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they can be
matched to and secured by a pattern of duties that would
respect and realise those rights. Following through the ways in which
these constraints interact is
analogous to solving a simultaneous
equation.
The complexity of these interlocking consistency requirements
means that any coherent interpretation of a plurality of rights has to
meet specific criteria. The full set of rights must be given an
interpretation under which any given individual
can have the
range of rights; under which all individuals can have that same
range of rights; and under which the duties that must be met in
order to respect and realise those rights can be met.
tall order. It may not
This is quite a
show that there is a single optimal
interpretation of human rights, but it is likely to provide a robust way
of identifying inadequate interpretations that should be rejected.
An interpretation of rights that meets all three consistency tests
will
not demonstrate that there is one and only one justifiable
configuration of human rights, but will offer
a robust
justification that rules out many possibilities, and allows only for
limited variation.
If we approach rights to freedom of expression with this in mind, it
will I believe be feasible to identify many of the ways in which they
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must and must not be qualified. No interpretation will be acceptable
unless it allows that all are to enjoy rights to freedom of expression.
No interpretation will be acceptable unless it allows for respect and
realisation of all other rights of all parties. And no interpretation will
be acceptable unless it leaves room for the action needed to respect
and realised all rights of all individuals.
Legislation that aims to
secure respect for human rights is therefore inevitably complex. What
is required in underdetermined by the basic documents. What is
required cannot be worked out if one considers matters one-right-at-atime. What is required cannot be worked out without ensuring that
action that must be taken if rights are to be respected is actually
feasible.
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