What Is Speech? The Question of Coverage

2021 ◽  
pp. 157-172
Author(s):  
Frederick Schauer
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
Authoritative Text ◽  
The Right

This chapter assesses the question of coverage of the right to freedom of speech. Beneath the language and complexities of the question of coverage, and apart from the misleading question, ‘what is speech?’, is a much simpler question that is necessarily the first question always to be asked: ‘is this a free speech dispute?’. The question of coverage is this question. At times the answer will be determined by an authoritative text. At times it will be answered by examining the underlying point of a distinct and weighty principle of free speech. And at times the answer will be so obviously ‘yes’ or ‘no’ that one may not even recognize that the question is there. But the question, whether explicit or implicit, is always there. Labelling the question as the question of coverage, and distinguishing between coverage and protection, brings to the surface a component that is necessarily part of addressing any free speech issue and any free speech dispute.

PERSECUTION AND THE ART OF FREEDOM: ALEXIS DE TOCQUEVILLE ON THE IMPORTANCE OF FREE PRESS AND FREE SPEECH IN DEMOCRATIC SOCIETY

2020 ◽  
Vol 37 (2) ◽  
pp. 190-208
Author(s):  
Khalil M. Habib
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
Freedom Of The Press ◽  
Alexis De Tocqueville ◽  
Free Society ◽  
Free Press ◽  
Constituent Element ◽  
The Press ◽  
The Right ◽  
Shed Light

AbstractAccording to Tocqueville, the freedom of the press, which he treats as an extension of the freedom of speech, is a primary constituent element of liberty. Tocqueville treats the freedom of the press in relation to and as an extension of the right to assemble and govern one’s own affairs, both of which he argues are essential to preserving liberty in a free society. Although scholars acknowledge the importance of civil associations to liberty in Tocqueville’s political thought, they routinely ignore the importance he places on the freedom of the press and speech. His reflections on the importance of the free press and speech may help to shed light on the dangers of recent attempts to censor the press and speech.

Where to limit the freedom of speech? Analysis in the context of the First Amendment to the US Constitution and the fighting words doctrine

2021 ◽  
Vol 37 (2) ◽  
pp. 239-256
Author(s):  
Karolina Palka
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
National Socialist ◽  
The Us ◽  
Us Constitution ◽  
Socialist Party Of America ◽  
The Right

This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called "fighting words" doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.

A Call from the Task Force

2020 ◽  
pp. 1-8
Author(s):  
Rodney A. Smolla
Keyword(s):  
Free Speech ◽  
Hate Speech ◽  
Task Force ◽  
Freedom Of Speech ◽  
Racial Violence ◽  
White Supremacist ◽  
Virginia Beach ◽  
The Right ◽  
Constitutional Protections ◽  
The City

This chapter introduces the task force created by Governor Terry McAuliffe in Richmond, Virginia that are tasked to study the racial violence in the city of Charlottesville during the summer of 2017. It mentions the violence in Richmond that claimed the life of Heather Heyer when a white supremacist, James Alex Fields Jr., slammed his speeding car into a crowd of counter-protesters confronting a “Unite the Right” rally. This chapter explains the work of the task force, which requires them to deeply investigate the constitutional protections of freedom of speech and freedom of assembly and the rules of engagement governing what society could or could not do when confronted with racial supremacist groups rallying in a city. It also describes the famous free speech case called Virginia vs. Black involving vicious racist hate speech. The case involved a cross-burning rally of the Ku Klux Klan (KKK) in rural western Virginia in 1998 and a second cross-burning incident in Virginia Beach in the yard of an African American, James Jubilee.

scholarly journals EDITORIAL: Free speech in Fiji

2009 ◽  
Vol 15 (1) ◽  
pp. 5-8
Author(s):  
David Robie
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Free Speech ◽  
Freedom Of Speech ◽  
Universal Declaration ◽  
Military Government ◽  
Media Freedom ◽  
Coup D'etat ◽  
The Right ◽  
The Military

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 informa tion and ideas through any media and regardless of frontiers.- Article 19, Universal Declaration of Human Rights When military strongman Commodore Voreqe Bainimarama staged his creeping coup d’état on 5 December 2006—Fiji’s fourth in two decades—he was quick to declare: ‘We will uphold media freedom’ (cited in Foster, 2007). Barely two and a half years later, when he finished off the job with a putsch—dubbed ‘coup 4.5’ by some—and after having expelled three publishers, two New Zealand diplomats and five journalists over the intervening period, he told Radio New Zealand freedom of speech ‘causes trouble’ and must be curbed to allow the military government do its work (Bainimarama: Free speech ‘causes trouble’, 15 April 2009).

Part VII Rights—Substance and Content, Ch.45 Free Speech and Expression

2016 ◽  
Author(s):  
Liang Lawrence
Keyword(s):  
Deliberative Democracy ◽  
Free Speech ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
Public Order ◽  
Indian Constitution ◽  
The Past ◽  
The Right ◽  
Successes And Failures

This chapter examines the place of the right to freedom of speech and expression within Indian constitutionalism. After reviewing the classical normative arguments for free speech, it considers how the domain of speech is related to colonial continuity, sedition, and public order. It discusses the scope of Article19(1)(a) of the Indian Constitution with respect to free speech, as well as the Indian Supreme Court’s successes and failures in its efforts to expand the domain of speech. It explores the democracy argument as the primary justification used by the courts in free speech cases, and its consequences. Finally, it looks at the standards for determining reasonableness, hate speech, and obscenity, and argues that the idea of a deliberative democracy must be supplemented with the concept of agonistic politics to enrich and strengthen the free speech tradition that has evolved in the past six decades.

Defamation Law in Turbulence: Does Israel Need ‘Libel Reform’?

2013 ◽  
Vol 46 (1) ◽  
pp. 95-134
Author(s):  
Tamar Gidron
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
Case Law ◽  
Public Debate ◽  
Judicial Discretion ◽  
Massive Change ◽  
The Media ◽  
The Right ◽  
Defamation Law ◽  
Over Time

Among the various bills proposing amendments to Israel's Defamation (Prohibition) Law that were presented to the 18th Knesset, the most controversial one is the bill proposing an increase in the caps on statutory damages (without proof of special or general damage). The current NIS 50,000 cap (NIS 100,000 when the publication was intended to cause injury) will be replaced, if the bill is approved, by a NIS 300,000 cap (NIS 600,000 when the publication was intended to cause injury). This proposed massive change has ignited a heated public debate. The bill, according to its proponents, is targeted principally at the media. Its aim is deterrence and even punishment, accomplished by attaching a higher price tag to libellous publications while focusing on remedies and leaving liability tests (including defences) untouched.I claim that this bill is both unnecessary and detrimental.Based on case law from the eight-year period 2004–11 on damages awarded by Israeli courts in defamation cases – both damages awarded ‘without proof of damage’ (the plaintiff does not need to prove damage caused by the publication) and damages awarded for ‘general damage’ (some general damage needs to be proved) – I conclude that the spectrum of judicial discretion is sufficiently broad to accommodate any level of deterrence seen fit by the courts in any circumstances. The fact that average damages awards do not reach the statutory caps indicates that, for all practical purposes, legislative intrusion in the manner proposed is erroneous. As to the normative standards the bill strives to convey, I maintain that absent reasonable justifications based on identifiable changes in cultural, social or other circumstances over time, the attempt to change the currently accepted balance between the rights of reputation and freedom of speech in Israeli defamation law in terms of damages awards is also erroneous.Even if some modification of the current balance between reputation and free speech, as a result of specified changes in circumstances, do indeed appear to be necessary, the particular content, form and measure of this specific bill – which have yet to be examined and assessed – do not seem to provide the right approach to achieve such modifications.

scholarly journals Exposing and exposing censorship: Backfire dynamics in freedom-of-speech struggle

2004 ◽  
Vol 10 (1) ◽  
pp. 29-45 ◽  
Author(s):  
Sue Curry Jansen ◽  
Brian Martin
Keyword(s):  
United Nations ◽  
Free Speech ◽  
Freedom Of Expression ◽  
Freedom Of Speech ◽  
Free Expression ◽  
Human Right ◽  
The United Nations ◽  
The Right ◽  
Backfire Effect

Censorship can backfire because it is usually viewed as a violation of the right to free expression, which is widely valued as an ideal; under the Charter of the United Nations, freedom of expression is a universal human right. Backfire occurs, for example, when censorious attacks on a film or book cultivate increased demand for the forbidden work rather than restrict access to it. Censors can inhibit this backfire effect in various ways, including covering up the censorship, devaluing the target, reinterpreting the action, using official channels, and using intimidation and bribery. These five methods to inhibit backfire from attacks on free speech are illustrated by a variety of cases, including attacks that backfired and ones that did not. This analysis provides guidance for effectively opposing attacks on free expression.

Conclusion

2018 ◽  
pp. 363-368
Author(s):  
Anushka Singh
Keyword(s):  
Free Speech ◽  
Legal Protection ◽  
Freedom Of Speech ◽  
Political Speech ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
Judicial Discourse ◽  
Political Speeches ◽  
The Law ◽  
The Right

The life of a law exists both within and beyond the statute books and courts’ interpretations. This assertion has been made in this work in the exploration of the journey of the law of sedition primarily at three levels—the first concerns itself with analysing the language of the law of sedition; the second, with studying the judicial discourse on sedition; and the third pertains to interrogating the quotidian aspects of law as it unfolds on the ground. While this work offers a focused study on Indian democracy at all these levels, it has broadened its scope by including experiences from the liberal democracies of the west in its analysis. This work has used sedition as a lens to probe the fate of political speech in liberal democracies which claim to give constitutional and legal protection of varying degrees to the right to free speech, of which political speech and the right to dissent are extensions. Despite the claims to protection, the working of such democracies has shown that the freedom of speech in relation to political speeches particularly has always been in danger. The liberal-democratic space has continued to shrink for dissident voices despite the progression of liberal democracies towards free speech jurisprudence and annulment or modification of laws related to sedition....

Freedom of Speech

2018 ◽  
Author(s):  
Jonathan Riley
Keyword(s):  
Free Speech ◽  
Hate Speech ◽  
Legal Theory ◽  
Freedom Of Expression ◽  
Type A ◽  
Freedom Of Speech ◽  
Type B ◽  
Public Expression ◽  
Laissez Faire ◽  
The Right

John Stuart Mill is a liberal icon, widely praised in particular for his stirring defense of freedom of speech. A neo-Millian theory of free speech is outlined and contrasted in important respects with what Frederick Schauer calls “the free speech ideology” that surrounds the First Amendment of the U.S. Constitution, and with Schauer’s own “pre-legal” theory of free speech. Mill cannot reasonably be interpreted to defend free speech absolutism if speech is understood broadly to include all expressive conduct. Rather, he is best interpreted as defending an expedient policy of laissez-faire with exceptions, where four types of expression are distinguished, three of which (labeled Types B, C, and D) are public or other-regarding, whereas the fourth (labeled Type A) is private or self-regarding. Types C and D expression are unjust and ought to be suppressed by law and public stigma. They deserve no protection from coercive interference: they are justified exceptions to the policy of letting speakers alone. Consistently with this, a moral right to freedom of speech gives absolute protection to Type B public expression, which is “almost” self-regarding. Type A private expression also receives absolute protection, but it is truly self-regarding conduct and therefore covered by the moral right of absolute self-regarding liberty identified by Mill in On Liberty. There is no need for a distinct right of freedom of expression with respect to self-regarding speech. Strictly speaking, then, an expedient laissez-faire policy for public expression leaves the full protection of freedom of private expression to the right of self-regarding liberty.An important application of the neo-Millian theory relates to an unjust form of hate speech that may be described as group libel. By creating, or threatening to create, a social atmosphere in which a targeted group is forced to live with a maliciously false public identity of criminality or subhumanity, such a group libel creates, or significantly risks creating, social conditions in which all individuals associated with the group must give up their liberties of self-regarding conduct and of Type B expression to avoid conflict with prejudiced and belligerent members of society, even though the libel itself does not directly threaten any assignable individual with harm or accuse him or her of any wrongdoing of his or her own. This Millian perspective bolsters arguments such as those offered by Jeremy Waldron for suppressing group libels. America is an outlier among advanced civil societies with respect to the regulation of such unjust hate speech, and its “free speech ideology” ought to be suitably reformed so that group libels are prevented or punished as immoral and unconstitutional.

Freedom of Speech

2018 ◽  
pp. 305-354
Author(s):  
Sandra Fredman
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
Freedom Of Information ◽  
Starting Point ◽  
The Us ◽  
Section Viii ◽  
The Right

This chapter assesses the theories justifying freedom of speech (Section II). Section III considers how free speech is protected by human rights instruments. The absence of an express limitation clause in the US First Amendment contrasts with other jurisdictions, which permit justifiable limitations. Sections IV–VII consider how courts have dealt with the most burning issues confronted in all of these jurisdictions: whether freedom of speech protects subversive speech, pornography, and hate speech. Where the limits of liberal tolerance lie remains a challenge for courts. While the harm principle provides a starting point, much depends on how speech is seen to cause harm. Section VIII asks whether the right-bearer includes not just the speaker, but also the recipient of speech and assesses the role of freedom of information. The chapter concludes that freedom of speech should go further than curbing State power to censor speech, creating conditions of genuine equality.

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