Free Speech in a Liberal Democratic Society

degage idiom in a Liberal elective SocietyPeople atomic number 18 rational beings with m both desires but in a continuous tense elective federation these desires have to be regulated, reconciled andcontrolled so that they do not impinge on the rights of other(a)s. From aphilosophical perspective, it is a dilemma whether the State should be thesource of liberty that regulates citizen p deviceicipation in society. On the otherhand, it can be argued that the State is the natural enemy of forego good transfer as it damage a ease society on various grounds. From a legal point of en received, it is appargonnt that two internationalisticist treaties and domestic legislations restrict release wrangle based on intellectual property, crime, morality, discrimination, media, in lickation and earnest laws. At the same time, however, granting immunity of speech has been backed up by a number of domestic, regional and international laws to ensure it is not undermined or abused. This endures to the question of where should the line be drawn and the extent of immunity of speech. This essay will analyse the current status of broad speech in a liberal p dodgeicipatory society. The discussion will involve both a legal, theoretical comparison amidst the dissimilar legislations and an analysis about how they interfere with the right to leave office speech. It is evident that in a liberal democratic society exemption of verbal expressionis highly valued based on various legislations.1In fact, it has been describe as the core value of a democratic society as itenhances its powers and builds a sustainable future.2It is the view of Fuller, an American legal theorist, that unbosom speech iscrucially important to human survival.3In addition, he views free expression as an inherent aspect of natural law as itmaintains, opens up and safeguards the integrity of the channel of connectionthrough which people communicate what they desire, perceive and feel.4This is bolstered by Dworkin who believes that policies and laws atomic number 18 only authorized if they be devoured democratically. As such(prenominal), exemption ofexpression is a condition of legitimate goernment.5Moreover, drudgery viewed free speech as a necessity for a flourishing society andindividual happiness and he defended commodious emancipation of expression.6Dworkin to a fault criticised what he calls individuals being passive victims of incorporated action because imposing a collective decision on an opposingindividual is illegitimate as free speech is the lifeblood of democracy.7Furthermore, regulating freedom of expression is not the best way to combatintolerance as such a alert fix solution energy leave the issue unresolved.8Quite the opposite, history shows that censorship is likely to suck undesirablespeech more attractive.9This is why Heinze even criticised the regulation of hate speech as inherentlydiscriminatory due to its selective character.10In additi on to the legal theory, free speech is protected by a number ofinternational and regional laws. ground on word 19 of the General multitudereticuloendothelial systemolution (GAR) in 1948, some sort of customary international law imposeslegal force which might not necessarily be binding on states, yet many of itsprovisions are binding.11This is as well built by bind 19 of the Universal Declaration of homoRights (UDHR) which states that Everyone has the right to freedom of tactile sensationand expression, the freedom to hold opinions without interference and to see,receive and import information.12Furthermore, Article 19 of the International Covenant on civic and PoliticalRights (ICCPR) emphasises the right to communicate ideas through anykind of media regardless of frontiers.13 It also ensures thefreedom to receive and seek information, which embeds a number of the rightswithin the UDHR.14Hence, Article 19 of the ICCPR imposes its framework and provisions that statesparties to the ICCPR should implement at a national level.15Alongside the ICCPR,16the right of free speech is granted in regional treaties such as the AmericanConvention on gracious Rights (ACHR) (Article 13),17the European Convention on humans Rights (ECHR) (Article 10)18and the African bring on Human and Peoples Rights (ACHPR) (Article 9).19Even free speech advocates recognise the importance of curb and framingfree expression which is also enhanced by statutory instruments.20For instance, it is the view of Judge Oliver Holmes that cheering fire in apacked theatre should not be seen as a form of freedom.21He added The question in every case is whether the spoken language used are used insuch set and are of such a nature as to create a terminate and presentdanger that they will bring about the substantive evils that congress has aright to clog as it is a question of proximity and degree.22Similarly, Meiklejohn argued that demanding free expression by self-governedmen does not opine e very person has an unalienable right to express themselveswherever, however and whenever they want.23Hence, people should only do so through the appropriate channels.24Promoting equality is perhaps more important than maintaining an absolutefree expression indemnity in a liberal democratic society. This should be the caseas some forms of speech are harmful which imposes an obligation on the State tomaintain the aegis of free society.25This contradicts zep who conditioned freedom of expression upon progressivesociety as the main priority.26Yet, Mills view has been criticised by cultured rights theorists as it supportsindividualism, while equality should be the priority for a democratic society.27Besides the harm convention proposed by Mill, Fienberg proposed what is calledthe offence ruler as a way of drawing a line between what should and shouldnot be acceptable in free speech.28Moreover, Waldron criticised Dworkins proposal which supported absolute freespeech as he believes i n regulating speech because it will promote equality andinclude minorities in the democratic process.29 consort to Lord Devlin, the public good should prevail over the rightsof the individual thus, the ethics of society have to be enforced by law. Thisprevents the disintegration of society which is an advantage of having a sharedmorality policy.30Based on this argument, regulating free speech does not pillage the liberaldemocratic society norms as it ensures equality and morality. In addition, itwould probably be better if undesirable free speech did not occur in the firstplace. Aside from the theoretical aspect of the dilemma, freedom of speech is circumscribed by human rights instruments as it is not absolute.31Based on the three stage test in Article 19(3) of the ICCPR, restricting speechis a legitimate action if the required criteria are followed.32First, the intervention should be in compliance with the law and should be formulatedwith sufficient precision to enable the citi zen to regulate his fetch.33Second, the legally enforced intervention should pursue a legitimate aim suchas protection of national security, public morals, health or order orprotecting the reputation and rights of others.34Third, there should be a necessity for the restriction towards a legitimateaim. The ECHR summarised this by stating that emancipation of expression issubject to a number of exceptions which, however, must be narrowly symbolizeedand the necessity for any restrictions must be convincingly established.35The same test is applied worldwide to measure the legitimacy ofrestrictions including the International Covenant, Universal Declaration,African Charter and American Convention.36In Europe, although Article 10 of the ECHR allows for various forms of freedom,Article 10(2) restricts this freedom to conditions, formalities, penaltiesbased on what is tell in the law to maintain a democratic society.37This shows how freedom of expression is not an absolute and so restr icting itshould not be seen as a violation of the right of free speech. In Canada, forexample, the Canadian Charter38maintains and applies a reasonable equilibrium to regulate free expression,39whereas in France, Germany and Austria holocaust denial is criminalised due tohistorically significant reasons.40For its part, in the UK, laws like the Racial and Religious annoyance scrap 200641and the Public Order figure out 199642regulate public order matters but this does not undermine the right of freespeech.43On the other hand, despite the US first Amendment which strengthens the rightof free speech,44case law such as Snyder v Phelps shows an application of restrictionsthere.45Finally, in Australia, an application similar to the one in Canada is appliedto strike a balance between free speech and harmful speech.46Based on Lingens v Austria,47and Handyside v UK,48it seems that restricting free speech is a legitimate action that does notviolate free expression since it is done for a ne cessary and appropriatereason. The Human Rights delegation emphasised in Shin v ROK49that even if the expression violates the law, Article 19(3) requires the Stateto explain the importance of implementing these measures.50As a result, even though national and international law perceives theimportance of implementing grounds to restrict free speech,51it should fall within the specified criteria based on the test.52Thus, the restrictions are implemented to safeguard and stop people fromabusing freedom. It seems at this stage that there is no gather in violation on theright of free expression as the imposed limitations are appropriate to thenature of liberal democratic society.53According to Mill, different views and opinions are valuable to societyeither because of the truth cornerstone the argument or if it is false because thiscontributes and reinforces the truth and its emergence.54He argued that to refuse a hearing to an opinion, because they are sure thatit is false, is to assu me that their certainty is the same thing as absolutecertainty all silencing of discussion is an presumptuousness of infallibility.55This argument was followed in the case of Mavlonov v Uzbekistan asArticle 19(2)56had been violated due to the State not having sufficient grounds to fulfil Article19(3).57In fact, the UN Human Rights Committee held that the authorities should haveallowed free expression of a newspaper as well as the right to receive ideasand information.58This case gnarly a newspaper that incited inter-ethnic hostility and theState of Uzbekistan, by silencing expression and regulating hate speech, wascriticised for damaging free society.59On the other hand, in RAV v City of St Pauls,60it was argued that the State should maintain open and free tip over without impairingone side of the debate. This case highlighted the unfairness of free speechregulation as the State allowed anti-sexist and anti-racist speech whileprohibiting sexist and racist speech. The Supreme Cou rt decided that the ordinancewas fair and favouring tolerance over intolerance was a legitimate reason tolimit speech.61exemption of expression is also regulated by Article 20(2)62of the ICCPR which forbids specific types of hate expression. In addition, anyadvocacy of national, racial or religious abomination that constitutes incitement todiscrimination, hostility or violence shall be prohibited by law.63It seems that Article 20 is working with Article 19 towards collaborating withthe States to balance by law which eliminates criminalising.64As a result, it can be argued that Article 20(2) does not violate freedom ofexpression in a liberal democratic society but regulates this freedompositively. This is bolstered by the Human Rights Committee in its DraftGeneral Comment No 34 (2011) which supports the compatibility between Articles20 and 19 of the ICCPR and sets permissible restrictions on the right of freespeech.65Hence, the Human Rights Committee re-affirmed that Article 20 prov idesconvenient sanctions in cases of a breach so it will not interpret provisionsto impose criminal sanctions in advance.66The case of Ross67clarified the overlapping characteristics of Articles 20 and 19 in which theHuman Rights Committee stressed the need for consistent interpretations of theCovenant.68 Inthis case, the Committee justified limiting the authors rights to freedom ofexpression and religion, based on Article 19(3). As a result, Article 20(2) didnot violate any rights of expression due to first, the prohibition of the actstated in the law second, a legitimate break up was clear third, the necessityto achieve its stated purpose.69Moreover, there was a violation in a subsection of the New Brunswick HumanRights performance due to the authors expressions being considered as discriminatoryand poisoning the community.70Clearly in this case the State Party prevented the author from expressing himselfwhich undermined liberal democratic values.71Furthermore, the Supreme Court decided not to allow the author to practise hisreligion while being a teacher which seems to be a denial of the freedom andright recognised by the Covenant.72Hence, the authors right of free expression was restricted and held as asufficient detriment for losing a teaching position as this job carriedspecific duties.73 However,as teaching young students carries special duties which if misconducted mightharm the pupils, it was proportionate to restrict the authors rights.74This is strengthened by Mills point of view that instigation is a form ofharming others, which is a legitimate justification for restricting free speechas occurred in this case.75Based on the harm principle introduced by Mill, freedom of speech shouldnot lead to discrimination and harm to any members of society. If this could beavoided, it would lead to a flourishing and healthy society, which is afundamental aspect of a liberal democratic society.76According to Article 26 of the ICCPR, hate and discrimination spee ch areprohibited by customary international law to avoid causing harm. This clearlystates that all persons are equal before the law and are entitled without anydiscrimination to the equal protection of the law on any ground such as race,colour, sex, language, religion, political or other opinion .77To summarise, it is clear at this stage that there are enough legalgrounds to restrict freedom of expression. This is also bolstered by a numberof legal theorists who are in favour of restricting free speech. The argumentis over the extent that the source of freedom which is the State should try tobalance equality and liberty. It has been argued that regulating freeexpression is a mechanism for enhancing free speech which is not an absoluteright. On the other side, some debaters claim that the truth shall only be revealedby having diverse opinions. Nowadays, there has been an increase in anti-discriminationand equality laws which have curtailed in limited circumstances free speech.There a re number of legislations for restricting free speech such as Article19(3) of the ICCPR,78Article 10(2) of the ECHR,79Section 2 of the CCRF,80as well as number of domestic legislations in the UK.81However, Article 19(3) of the ICCPR is conditioned on three grounds first, theintervention should be in compliance with the law second, the legally enforcedintervention has to pursue a legitimate aim third, there is a necessity forthe restriction. Based on the given grounds, it seems that there are legitimatebases for restricting free speech which does not violate the rights of aliberal democratic society but rather helps to protect the society. 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(2011) 17 Res Publica 385.53 Mavlonov v Uzbekistan Comm No1334/2004 (27 April 2009) para 4.2.54 Warburton (n 1) 26.55 John Mill, On Liberty (Penguin Books 2010) 27.56 ICCPR (n 13) art 19(2).57 Mavlonov v Uzbekistan (n 53) para 2.6.58 ibid.59 Mill (n 55) 28.60 RAV v City of St Pauls 505 US 377(1992).61 Owen MFiss,The Irony of Free Speech(HarvardUniversity Press 1998).62 ICCPR (n 13) art 20(2).63 ibid.64 Bennett (n27).65 ibid.66 ibid.67 Malcolm Ross v Canada Comm No736/1997 (18 October 2000).68 ibid para 6.3.69 ibid para 6.9.70 ibid para 6.10.71 ibid para 7.2.72 ibid.73 Paul MartinWragg,Critiquing the UK Judiciarys Response to Article 10 Post-HRA(University of Durham 2009) 103.74 ibid 104.75 Mill (n 55) 30.76 WW VanAlstyne, Freedom of Speech and the Flag Anti-Desecration Amendment Antinomiesof Constitutional Choice (1991) 29 Free Speech Yearbook 96.77 ICCPR (n 13) art 26.78 ibid art 19(3).79 ECHR (n 18) art 10(2).80 Canadian Charter of Rights and Freedoms, s2.81 Racial and Religious Hatred Act 2006Public Order Act 1996 Criminal Justice and Immigration Act 2008 MaliciousCommunications Act 1988 (amended 2003) and Criminal Justice Act 2003.