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Justifying Limitations on the Freedom of Expression

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• Published: 01 November 2020
• Volume 22 , pages 91–108, ( 2021 )

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• Gehan Gunatilleke   ORCID: orcid.org/0000-0002-8670-8602 1 , 2  

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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

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Introduction

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.

One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.

The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

The Value of the Freedom of Expression

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).

Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.

The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.

On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).

The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.

The Proportionality Test

Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.

In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.

A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto   sensu  ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).

Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).

A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.

At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.

This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).

At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.

The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.

A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.

First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.

Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto   sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.

The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.

The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).

Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.

Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.

A Duty-Based Justificatory Approach

The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.

Duties of Justice

The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).

Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.

What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.

Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.

A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.

The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.

A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.

A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.

An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.

A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.

Is the Language of Duties Dangerous?

The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).

Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.

Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.

In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.

Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.

There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.

Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)

‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

Books, Chapters, and Articles

Arai-Takahashi Y (2002) The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR. Intersentia, Cambridge

Google Scholar  

Arai-Takahashi Y (2005) Scrupulous but Dynamic’—the Freedom of Expression and the Principle of Proportionality under European Community Law. Yearbook of European Law 24(1): 27-79

Barak A (2012) Proportionality: Constitutional Rights and Their Limitations. Cambridge University Press, Cambridge

Berlin I (1969) Two Concepts of Liberty. In Isaiah Berlin, Four Essays on Liberty . Oxford University Press, Oxford

Boyle K and Shah S (2014) Thought, Expression, Association and Assembly. In: Moeckli D, Shah S, Sivakumaranm S, and Harris D (eds) International Human Rights Law. Oxford University Press, Oxford

Choudhry S (2006) So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1. Supreme Court Law Review 34: 501-535

Dworkin R (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

Dworkin R (1984) Rights as Trumps. In: Waldron J (ed) Theories of Rights: Oxford Readings in Philosophy. Oxford University Press, Oxford

Dworkin R (1985) A Matter of Principle. Harvard University Press, Cambridge, MA

Feinberg J (1970) The Nature and Value of Rights. The Journal of Value Inquiry 4(4): 243-260

Feinberg J (1987) The Moral Limits of the Criminal Law Volume 1: Harm to Others. Oxford University Press, Oxford

Gaus GF (1996a). Justificatory Liberalism: An Essay on Epistemology and Political Theory. Oxford University Press, Oxford

Gaus GF (1996b) Liberalism, Stanford Encyclopaedia of Philosophy (revised version as of 22 January 2018)

George RP (1995) Making Men Moral: Civil Liberties and Public Morality. Oxford University Press, Oxford

Goodin RE (2017) Duties of Charity, Duties of Justice. Political Studies 65(2): 268-283

Grimm D (2007) Proportionality in Canadian and German Constitutional Jurisprudence. University of Toronto Law Journal 57: 383-397

Hart HLA (1955) Are There Any Natural Rights? The Philosophical Review 64(2): 175-191

Hohfeld WN (1919) Fundamental Legal Conceptions as Applied in Judicial Reasoning. Cook WW (ed). Yale University Press, New Haven

Khan AM (2015) Pakistan’s Anti-Blasphemy Laws and the Illegitimate use of the ‘Law, Public Order, and Morality’ Limitation on Constitutional Rights. The Review of Faith & International Affairs 13(1): 13-22

Knox JH (2008) Horizontal Human Rights Law. The American Journal of International Law 102(1): 1-47

Kumm M (2004) Constitutional rights as principles: On the structure and domain of constitutional justice. International Journal of Constitutional Law 2(3): 574-596

Kumm M (2010) The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review. Law & Ethics of Human Rights 4: 142-175

Letsas G (2007) A Theory of Interpretation of the European Convention on Human Rights. Oxford University Press, Oxford

Letsas G (2006) Two Concepts of the Margin of Appreciation. Oxford Journal of Legal Studies 26(4): 705-732

Marmor A (2018) Two Rights of the Freedom of Expression. Ratio Juris 31: 139-159

Mill JS (1859) On Liberty

Mill JS (1861) Utilitarianism. In: The Collected Works, Volume 10 (1974), University of Toronto Press, Toronto

Möller K (2014) Constructing the Proportionality Test: An Emerging Global Conversation. In: Lazarus L, McCrudden C and Bowles N (eds) Reasoning Rights: Comparative Judicial Engagement. Hart Publishing, London

Moyn S (2016) Rights vs. Duties: Reclaiming Civic Balance. Boston Review 41(3): 1-12

O’Neill O (1996) Towards Justice and Virtue: A Constructive Account of Practical Reasoning. Cambridge University Press, Cambridge

Petrasek D (1999) Taking Duties Seriously: Individual Duties in International Human Rights Law – A Commentary. International Council on Human Rights Policy, Versoix

Rawls J (1999). A Theory of Justice: Revised Edition. Harvard University Press, Cambridge, MA

Rawls J (2005) Political Liberalism: Expanded Edition. Columbia University Press, New York

Raz J (1986) The Morality of Freedom. Clarendon Press, Oxford

Raz J (1999) Practical Reason and Norms. Oxford University Press, Oxford

Rivers J (2006) Proportionality and Variable Intensity of Review. Cambridge Law Journal 65: 174-207

Scanlon T (1998) What We Owe to Each Other. Belknap Press, Cambridge, MA

Sen A (1997) Human Rights and Asian Values: What Lee Kuan Yew and Li Peng don't understand about Asia. The New Republic 217 (2-3): 33-40

Shiffrin S (2003) Speech, Death, and Double Effect’ New York University Law Review 78(3): 1135-1185

Stone GR (1987) Content-Neutral Restrictions. University of Chicago Law Review 54: 46-118

Strauss DA (2002) Freedom of Speech and the Common-Law Constitution. In: Bollinger LC and Stone GR (eds) Eternally Vigilant: The Freedom of Expression in the Modern Era, University of Chicago Law Press, Chicago

Tremblay LB (2014) An egalitarian defense of proportionality-based balancing. International Journal of Constitutional Law 12 (4): 864-890

Tridimas T (2007) The General Principles of EU Law. Oxford University Press, Oxford

Tsakyrakis S (2009) Proportionality: An Assault on Human Rights? International Journal of Constitutional Law 7: 468-493

Urbina FJ (2015) Incommensurability and Balancing. Oxford Journal of Legal Studies 35 (3): 575-605

Urbina FJ (2014) Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’. Canadian Journal of Law & Jurisprudence 27 (1): 167-192

Van Dijk P and Van Hoof GJH (1998) Theory and Practice of the European Convention on Human Rights. 3rd edition. Kluwer, The Hague

Von Bernstorff J (2014). Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to the Realisation of Individual and Collective Self Determination. In: Lazarus L, McCrudden C and Bowles N (eds) Reasoning Rights: Comparative Judicial Engagement. Hart Publishing, London

Waldron J (1993). Liberal Rights. Cambridge University Press, Cambridge

Webber G (2009) The Negotiable Constitution: On the Limitation of Rights. Cambridge University Press, Cambridge

Zoller E (2009) The United States Supreme Court and the Freedom of Expression. Indiana Law Journal 84: 885-916

Zysset A (2019) Freedom of expression, the right to vote, and proportionality at the European Court of Human Rights: An internal critique. International Journal of Constitutional Law 17(1): 230-251

Claudia Andrea Marchant Reyes et al. v. Chile, Communication No 2627/2015 (CCPR views adopted on 7 November 2017), CCPR/C/121/D/2627/2015

Fedotova v. The Russian Federation , Communication No 1932/2010 (CCPR views adopted on 31 October 2012), CCPR/C/106/D/1932/2010

Handyside v. The United Kingdom, Application No. 5493/72, ECtHR judgment of 7 December 1976

İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 December 2005)

Ladue v. Gilleo (1994) 512 U.S. 43 (U.S. Supreme Court)

Leyla Şahin v. Turkey , Application No 44774/98, ECtHR judgment [GC] of 10 November 2005

Otto-Preminger-Institut v. Austria , Application No. 13470/87, ECtHR judgment of 20 September 1995

R v. Oakes [1986] 1 SCR 103 (Canadian Supreme Court)

S.A.S v. France , Application No 43835/11, ECtHR judgment [GC] of 1 July 2014)

Thoma v. Luxembourg , Application No 38432/97, ECtHR judgment of 29 June 2001

United States v. O'Brien (1968) 391 U.S. 367 (U.S. Supreme Court)

Wingrove v. The United Kingdom, Application No. 17419/90, ECtHR judgment of 25 November 1996

Zaheeruddin v. State (1993) SCMR 1718 (Supreme Court of Pakistan)

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Acknowledgements

The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.

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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

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Accepted : 26 October 2020

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5 Freedom of Expression and Democracy

Martin Luther King, Jr Professor of Law and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law, Davis, United States

Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, United States

• Published: 10 February 2021
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This chapter focuses on the relationship between freedom of expression and democracy from both a historical and a theoretical perspective. The term ‘freedom of expression’ includes free speech, freedom of the press, the right to petition government, and freedom of political association. Eighteenth-century proponents of popular government had long offered democratic justifications for freedom of expression. The chapter then demonstrates that freedom of political expression is a necessary component of democracy. It describes two core functions of such expression: an informing and a legitimating one. Finally, the chapter examines the concept of ‘democracy’, noting various ways in which democracies vary among themselves, as well as the implications of those variations for freedom of expression. Even before democratic forms of government took root in the modern world.

5.1 Introduction

This chapter examines the relationship between freedom of expression and democracy from both a historical and a theoretical perspective. As used in this chapter, the term ‘freedom of expression’ includes free speech, freedom of the press, the right to petition government, and freedom of political association.

Even before democratic forms of government took root in the modern world 1 in the late eighteenth century, proponents of popular government had long offered democratic justifications for freedom of expression. During the English Civil War in the middle of the seventeenth century, the Levellers, a group of Puritans who advocated expansive manhood suffrage, 2 invoked popular sovereignty as a reason for freedom of expression on public matters. 3 In 1670, the Jewish-Dutch philosopher Baruch Spinoza reasoned that because in a ‘democratic state’ every collective decision is open to revision in case the people ‘should find a better course’, it follows that everyone should be ‘allowed to think what they wish and to say what they think’. 4 In the 1720s, reflecting the Radical English Whig argument in favour of popular rather than parliamentary sovereignty, John Trenchard and Thomas Gordon, writing as Cato, defended a robust right to criticize public officials. 5 Cato’s essays were enormously influential in the American colonies when first published. They continued to be widely read in America when, at the end of the eighteenth century, Americans adopted a constitution whose opening words, ‘We the People’, established a government based on popular sovereignty, and which shortly thereafter was amended to protect freedom of expression.

The first part of the chapter demonstrates that freedom of political expression is a necessary component of democracy. It then describes two core functions of such expression: an informing one and a legitimating one. Finally, this chapter examines the concept of ‘democracy’, noting the ways in which democracies vary among themselves, as well as the implications of those variations for freedom of expression.

5.2 The Essential Connection between Freedom of Expression and Democracy

Democracy literally means ‘rule by the people’, combining the Greek words demos (‘the people’) and kratein (‘to rule’). 6 Contemporary democracies come in many varieties, each coloured by its particular culture and history. Despite these differences, a common denominator of all contemporary democracies is a practical, if not always formal, commitment to popular sovereignty—a state of affairs in which the people exercise ultimate control over their government. Another basic precept of every contemporary democracy is formal political equality of every citizen. A necessary component of each of these two basic democratic norms is freedom of political expression. Though largely overlapping, the expression inherent in these two basic democratic norms have some distinct features.

5.2.1 Political Expression as a Necessary Component of Popular Sovereignty

Popular sovereignty requires that ‘ultimate political power resides in the population at large, that the people as a body are sovereign, and that they, either directly or through their elected representatives in a significant sense actually control the operation of government’. 7 The most obvious and direct way that the people exercise control over their government is through voting, either by electing representatives, or by directly voting on laws or policies through ballot measures such as referenda, initiatives, and recall. 8 Because the right to vote is so crucial to popular control of government, a society entirely lacking the franchise is plainly not a democracy. The directness of this control, however, tends to obscure a less direct, yet equally essential, prerequisite of modern democracy: the right of the people to speak freely about collective decisions within the purview of the people’s ultimate sovereignty, that is, on matters of public concern.

As James Madison recognized more than two centuries ago, because ‘[t]he people, not the government, possess the absolute sovereignty’, 9 it follows that the ‘censorial power is in the people over the government and not in the government over the people’. 10 Or as more recently explained in an opinion of the House of Lords, then the highest court in the United Kingdom:

Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. 11

Thus, like the franchise, ‘the principle of freedom of speech springs from the necessities of the program of self-government’. 12

5.2.1.1 The Crucial Role of Public Opinion

The primary mechanism through which freedom of expression in a democracy controls government is public opinion. 13 As Madison observed in a 1791 essay on the subject, ‘[p]ublic opinion sets bounds to every government, and is the real sovereign in every free one’. 14 It is an important link in what James Wilson, another framer of the US Constitution, called the ‘chain of communication between the people, and those, to whom they committed the exercise of the powers of government’. 15 In a representative democracy, public opinion not only influences who is elected to govern, but also influences the decisions made by these representatives between elections. For while elections are ‘an intermittent mechanism’, public opinion is ‘constantly active’. 16 When the people directly make laws or policy through ballot measures rather than indirectly through their representatives, public opinion will tend to have a correspondingly greater direct effect on the outcome.

The right of the people to speak freely on matters of public concern is, in turn, essential to the formation of the public opinion by which the people control the government. This is because government propaganda and statements by government officials also affect public opinion. If the people cannot freely express their views on public matters, then public opinion will largely reflect the views of government officials and thus be an ineffective means of popular control of government.

As Madison’s statement about public opinion demonstrates, even in the early stages of the development of modern democracy some leading political figures thought public opinion was a potentially important mechanism by which the people in a democracy could—and should—control their government. 17 With the advent of methods of communication ‘such as the telegraph, the newspaper, and the fast mail’ that made early forms of mass media possible, the roles of public opinion and an active citizenry in democracy were cemented. 18 By the middle of the twentieth century, with the development of modern mass media such as radio, television, and film, Hans Kelsen could proclaim that the discussion about proposed laws and policies takes place ‘not only in parliament, but also, and foremost, at political meetings, in newspapers, books, and other vehicles of public opinion’. 19 And by the end of the century, the advent of the Internet and social media further increased the power of public opinion as a source of popular control of the government.

It has been aptly observed that ‘[a] democracy without public opinion is a contradiction in terms’. 20 In light of the essential relationship between freedom of political expression and public opinion, a democracy without such a political freedom is similarly an oxymoron. Precisely how much freedom of political expression must exist in a society before it can properly be referred to as a democracy is perhaps not susceptible to a precise answer. But this should not obscure the fact that at some point governmental prohibition of this freedom renders the government non-democratic.

5.2.1.2 Judicial Decisions Deriving a Right of Free Speech from a Commitment to Popular Sovereignty

Supporting the view that free speech is a necessary component of democracy, courts in several jurisdictions lacking an express provision protecting freedom of expression have derived such a freedom from their nation’s commitment to popular sovereignty. In a noted 1992 decision, the High Court of Australia (the highest court in Australia’s legal system) found freedom of political expression to be necessary to the system of representative government established by those provisions of the Australian Constitution creating a parliament elected by popular vote. 21 Because representatives are not only chosen by the people ‘but exercise their legislative and executive powers as representatives of the people’, representatives are ‘accountable to the people’ and have ‘a responsibility’ to take account of the views of those on whose behalf they act. 22 ‘Indispensable’ to such accountability and responsibility

is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives … [In addition] elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives. 23

Similarly, the Supreme Court of Israel found a right to freedom of expression implicit in Israel’s commitment to popular sovereignty. 24 Likewise, the Canadian Supreme Court has observed that even before the right to freedom of expression was enshrined as a fundamental freedom in the Canadian Charter, ‘freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy’. 25

5.2.1.3 The Argument that Freedom of Expression is Not a Necessary Component of Popular Sovereignty

Because it can hardly be denied that freedom of political expression is an indispensable means by which the people in contemporary democracies control their government, the argument against the view that such expression is a necessary component of popular sovereignty is of a different order, invoking a supposed ‘paradox of power’. 26 As pithily summarized by Frederick Schauer:

If the people collectively are in fact the sovereign, and if that sovereign has the unlimited powers normally associated with sovereignty, the acceptance of this view of democracy compels acceptance of the power of the sovereign to restrict the liberty of speech just as the sovereign may restrict any other liberty. 27

But there is no true paradox here. For if the people exercise their sovereignty to abolish a truly necessary component of popular control of their government, they have by definition abolished popular sovereignty and hence democracy. Suppose that the people in a democratic society adopt a constitution that abolishes its popularly elected legislature and executive and installs a populist demagogue as dictator for life with unlimited power to rule by decree. 28 Despite its origins in an exercise of popular sovereignty, moving forward this system of government cannot be properly referred to as a democracy. Now suppose instead that the people retain a popularly elected legislature and executive, but amend the constitution to prohibit anyone from publicly criticizing government officials or urging their defeat in an election. If, as is argued above, freedom of political expression is, like voting, an indispensable means by which people control their government, then so long as this speech ban remains part of the constitution and is actually enforced, this system of government is also not a democracy.

It might be argued that because voting for representatives is a more direct way that people control their government than is political expression, the franchise is a more important component of popular sovereignty than is the basic right of political expression. But even if this is true, it would not undercut the claim that freedom of political expression is a necessary component of popular sovereignty. An engine may be more important than wheels to making an automobile run, but wheels are nonetheless a necessary component of an automobile. 29

5.2.2 Political Expression as a Necessary Component of Formal Political Equality

A basic precept of Enlightenment philosophy is that each person is of equal moral worth. 30 What precisely this precept requires of government has long been and remains highly contested. Despite the continuing debate about various important details, there is now, however, a clear consensus among contemporary democracies that respect for the equal moral worth of each individual requires at least formal political equality. 31 This commitment includes a formal (or procedural) right to equal participation in the political process. 32 As Robert Dahl has explained: ‘The democratic process is generally believed to be justified on the ground that people are entitled to participate as political equals in making binding decisions, enforced by the state, on matters that have important consequences for their individual and collective interest’. 33

As with popular sovereignty, the most apparent manifestation of this commitment to political equality is voting. This commitment is reflected in the universal adult suffrage practised in every contemporary democracy. 34 Just as crucially, however, formal political equality also includes the right of every person to contribute to public opinion by freely expressing their views on matters of public concern. 35 For this reason, the expression protected by this right is vitally connected to the formation of public opinion and as such overlaps to a considerable extent with the freedom of expression derived from popular sovereignty. There are, however, some significant differences in the nature and scope of freedom of expression inherent in these two basic democratic precepts.

The political expression inherent in popular sovereignty primarily promotes the informing function of freedom of expression discussed in detail in Section 5.3.1 , below. As such, it primarily vindicates audience interests, especially by assuring that the electorate has access to information and perspectives needed ‘to vote wise decisions’. 36 In contrast, the right of freedom of expression derived from formal equality primarily vindicates speaker interests. It does so by assuring individuals the free and equal opportunity to try to persuade others about the proper determination of society’s collective decisions. 37 In addition to any potential persuasive effect, such expression serves ‘to confirm [the speaker’s] standing as a responsible agent in, rather than a passive victim of, collective action’. 38 As discussed in detail in Section 5.3.2 , below, vindication of these important speaker interests promotes the crucial legitimation function of democracy.

Because of its speaker orientation, the right to freedom of expression inherent in formal political equality is somewhat broader in scope than is the freedom of expression that is a necessary component of popular sovereignty. Because the primary function of the latter is informational, ‘[w]hat is essential is not that everyone shall speak, but everything worth saying shall be said’. 39 The right of freedom of expression derived from formal political equality also includes the expression of information and ideas through which speakers try to influence public opinion. But because this right in addition includes expression by which speakers confirm their ‘standing as a responsible agent[s] in, rather than a passive victim of, collective action’, it also protects the right of speakers to have their ‘say’ 40 on matters of public concern, even if in doing so they do not supply the audience with useful information or perspectives. As discussed in Section 5.3.2 , below, this arguably includes expression whose content is primarily emotional rather than cognitive, such as the use of profanity in public discourse.

Finally, but crucially, a right of freedom of political expression based in formal equality provides a stronger guarantee of equal treatment of speakers engaged in political speech than does a right derived from popular sovereignty. For instance, it is not obvious that a law banning the use of loud speakers in political demonstrations on public streets adjacent to medical facilities but providing an exception for anti-abortion protestors would deprive the electorate of valuable information or perspectives. Such an unequal law, however, would manifestly violate the rights of those who support abortion rights who want to use loudspeakers in protests in front of medical facilities.

5.3 Two Core Democratic Functions of Freedom of Expression

As will be explored in detail in the next section, the strength and scope of speech protection in a given democracy is a product of the emphasis each society places on various forms of democracy (as well, of course, on free speech values other than democratic ones). Despite this variation, however, in every contemporary democracy freedom of expression promotes two key democratic purposes reflecting the shared commitment to popular sovereignty and formal political equality: an informed citizenry and political legitimacy.

5.3.1 The Informing Function

The importance of the informing function of freedom of expression to contemporary democracy is underscored by Article 10 of the European Convention of Human Rights (ECHR), which provides that freedom of expression shall include freedom ‘to receive and impart information and ideas without interference by public authority’. This crucial democratic free speech function can usefully be divided into three categories: (1) expression that informs the electorate so that the people can ‘vote wise decisions’; 41 (2) expression that informs speakers so that they can knowledgably participate in public discourse; and (3) expression that informs representatives of the views of the electorate. The representative informing function has already been discussed in Section 5.2.1.1 . This section, then, will focus on the other two democratic informing functions of freedom of expression.

The necessity of freedom of expression for an informed electorate is among the most often invoked justifications for freedom of expression, democratic or otherwise. It is the central theme, for instance, of Alexander Meiklejohn’s enormously influential book, Free Speech and its Relationship to Self-Government . 42 Focusing on the First Amendment to the US Constitution but in terms that apply equally to any contemporary democracy, Meiklejohn explains that the purpose of the constitutional protection of free speech

is to give every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal. When a free man is voting, it is not enough that the truth is known by someone else, by some scholar or administrator or legislator. The voters must have it, all of them … That is why no idea, no opinion, no doubt, no belief, no counterbelief, nor relevant information, may be kept from them. 43

In the same vein, the High Court of Australia has emphasized the function of freedom of expression to assure ‘access to the people to relevant information about the functioning of government … and about the policies of political parties and candidates for election’. 44

As exemplified by the above quotation from Meiklejohn, discussion of the democratic informing function of freedom of expression is usually audience centred, focusing on the importance of such expression to informed voting. Although not frequently emphasized, there is, however, another democratic informing function of free speech that promotes speaker interests. One reason people participate in the discussion of matters of public concern is to try to persuade others of their views. While it is regrettably true that uninformed speakers are often persuasive, in many settings being well informed on a subject amplifies a speaker’s persuasive power. For this reason, laws that interfere with citizens’ ability to become informed on matters of public concern interfere not only with the ability of voters to participate in the political process but also with speakers’ participatory interests. Crucially, any regulation that selectively interferes with the expression of particular ideas or perspectives infringes the fundamental precept of equal political participation discussed above. 45

Finally, any discussion of the democratic informing function of freedom of expression would be remiss if it did not note the special role played by the institutional press. Before the rise of social media, the institutional press was for many citizens in democratic societies the principal source of information and perspectives on matters of public concern. Although no longer enjoying this virtual information-providing monopoly, the institutional press remains the primary entity that engages in investigative journalism exposing government corruption and malfeasance. In this way, the institutional press remains crucial to the informing function of freedom of expression. 46

5.3.2 The Legitimating Function

Another core democratic function performed by freedom of expression is the promotion of political legitimacy. Although not as frequently emphasized, this function is arguably as important to democracy as is the informing function. 47

Political legitimacy refers to the conditions that entitle a political entity to govern, and in particular, to use coercion to enforce its laws. 48 Additionally, indeed some would say correlatively, 49 it refers to the conditions that create an obligation for people to obey the laws of a political entity. Political legitimacy has both a descriptive and normative sense. Descriptively, the term refers to the people’s belief that the political entity asserting authority over them has a right to do so. In addition, it refers to their belief that they have an obligation to obey the laws enacted by this entity. 50 Normatively, political legitimacy usually refers to ‘the conditions permitting the political state to justifiably demand obedience from its citizens, and thus to impose its laws on those who refuse to obey’. 51

With respect to normative legitimacy, democracy provides the best available answer to the age-old problem of justifying the use of force against free and autonomous people to make them obey a law with which they can reasonably disagree. There may well be no completely satisfactory justification for the use of such force. However, the opportunity to participate as an equal in the political process discussed in Section 5.2.2 , above, goes a long way towards justifying what would otherwise be the immoral use of coercion to enforce the law. As C Edwin Baker explains: because ‘[a] democratic process “equally” respects people as properly having a “say” in the rules they live under’, democracy is ‘arguably the best that can be done … for justifying the legitimacy of the legal order’. 52 With respect to descriptive legitimacy, empirical studies suggest that ‘an opportunity to take part in [a] decision-making process’, 53 in which citizens are able ‘to present their views’ 54 and are treated with ‘dignity and respect’, 55 increases the participants’ feeling that they ‘ought to obey the law’, 56 including laws with which they disagree. 57

A manifestly crucial way that citizens have a ‘say’ in the rules they live under is through voting for representatives or by directly determining these rules through voting on ballot measures such as referenda. Equal voting rights are thus unquestionably a vital means for promoting the legitimacy of a governing entity. Conversely, denying the right to vote to a particular person, or to a group of people, would, without exceedingly strong justification, violate the fundamental democratic precept of formal political equality discussed in Section 5.2.2 , above. Such disenfranchisement can thus have grave implications for political legitimacy in both its descriptive and normative sense. 58

Freedom of political expression is another important way in which people can have a ‘say’ in the rules they live under. As discussed in Section 5.2.1.1 , above, public opinion controls the actions of elected officials between elections. ‘[A] necessary condition for citizens to identify with public opinion is the guarantee that all can freely participate in the public deliberations by which public opinion is formed’. 59 By the same token, speech restrictions can undermine the legitimacy of a legal system. Like selective restrictions on voting, unless justified by extremely weighty reasons, rules forbidding the expression of particular viewpoints or perspectives on matters of public concern violate the basic democratic commitment to formal equality by selectively denying citizens their fundamental interest in equal political participation. To the extent that such censorship prevents people from expressing what they believe is best for society, it is insulting; insofar as the speech restriction impairs their ability to promote or protect their own self-interest, it is fundamentally unfair. For these reasons, viewpoint-discriminatory restrictions tend to undermine the legitimacy of the legal system in both its normative and descriptive sense.

Descriptively, at least some of those who were legally prevented from expressing their views will be less likely to feel that the political entity that imposed the restriction has the right to assert authority over them or that they have an obligation to obey the entity’s laws. Normatively, this censorship tends to undermine the moral justification that this entity has to use coercion to enforce its laws against dissenters.

While laws prohibiting the expression of particular viewpoints on matters of public concern are especially damaging to political legitimacy, they are not the only type of speech restrictions that can undermine legitimacy. At least in its descriptive sense, legitimacy might be compromised by viewpoint-neutral laws banning only offensive forms of expression, such as the use of profanity, bigoted epithets, or the burning of a national flag. As the US Supreme Court explained in upholding the First Amendment right of an anti-war protestor to appear in public wearing a jacket bearing the message ‘Fuck the Draft’, ‘words are often chosen as much for their emotive as their cognitive force’. 60 For those speakers for whom the emotive force of public expression is at least as important as the cognitive, such a ban may seem unjustifiably censorious. As a result, such restrictions may diminish their belief that their government has a right to assert authority over them as well as weaken their sense of political obligation to obey the law. 61

Discussion of the legitimation function of free speech usually focuses on the effect of free speech and its restriction on the legitimacy of the legal system . But freedom of political expression, and its restriction, can also affect the legitimacy of individual laws within a legal system. 62 Even the most egregious speech restriction likely to be enacted in a mature and stable democracy, while diminishing the legal system’s legitimacy ‘reservoir’, 63 would not likely cause catastrophic damage to that nation’s political legitimacy. In contrast, an isolated speech restriction might even in a mature and stable democracy have a ruinous effect on the legitimacy of an individual law about which there can be reasonable disagreement. 64 Applications of hate speech bans and public order act provisions to criticism of homosexuality provide an example of the potential of speech restrictions to destroy the legitimacy of certain applications of individual laws.

Recently, there has been a debate in many democratic jurisdictions as to propriety of expanding anti-discrimination laws to forbid discrimination on the basis of sexual orientation in places of public accommodation, and if so whether to allow religious exemptions. This controversy involves a clash of important individual interests. On the one hand, such an extension would protect the interests of homosexual persons by assuring them access to goods and services in places of public accommodation. 65 On the other hand, the application of such laws to some religious proprietors would substantially burden their sincerely held religious beliefs. 66 Moreover, unlike, say, laws prohibiting murder, arson, and mayhem, such an extension of a jurisdiction’s anti-discrimination measures is one about which there can be reasonable disagreement, especially as regards their application in ways that burden religious belief. In many democratic countries, however, people have been arrested, tried, and even convicted for publicly proclaiming that homosexuality is immoral or disordered. 67 In these jurisdictions, therefore, some citizens, including those whose interests would be directly affected by the law, were precluded from freely expressing their authentic views in opposition to the expanded anti-discrimination measure.

Descriptively, the inability of these dissenters to have their ‘say’ about the propriety of the law might well have for many of them destroyed any belief that the jurisdiction has any right to apply this law to them and, similarly, obliterated any obligation that they may have felt to obey the law. Normatively, these speech restrictions may have rendered immoral what would have otherwise been the appropriate use of coercion to enforce these laws against dissenters. Conversely, the opportunity of dissenters to freely present their authentic views for opposing a law reinforces the morality of using coercion to make them comply with laws with which they can reasonably disagree.

5.4 Forms of Democracy and Their Implications for Free Expression

This section examines more closely the meaning of the word ‘democracy’. Democracy is, after all, a capacious term. It has been practised in many different forms over the centuries, and even in the modern world varies significantly even among fully democratic nations. And these differences have implications for the extent and nature of the protections these nations must and do provide for free expression.

One very common way to approach differences is to identify specific, defined ‘models’ of democracy and their natures. 68 Rather than taking this somewhat rigid approach, however, this section instead identifies four different axes along which democracies differ: direct versus representative democracy; pluralist versus deliberative democracy; substantive versus proceduralist democracy; and libertarian versus militant democracy. Different political systems of course exist in different places along each axis.

5.4.1 Direct/Participatory Versus Representative Democracy

The oldest, and probably most significant axis upon which democracies vary is between democracies in which citizens directly make binding decisions, called direct democracies (or sometimes participatory democracies because citizens participate in the decision-making process), and democracies where power is wielded by the people’s elected representatives. The ancient democracies of the Greek city-states, notably Athens, were direct democracies. In the modern era, direct democracy of that form, with citizens meeting in person, discussing issues, and then voting, survives only in a few small jurisdictions such as the town meetings still held in the New England region of the United States. 69 The reason for the decline of direct, face-to-face democracy is of course the enormous increase in the physical size and populations of modern nations and their significant subdivisions, making physical meetings impossible. It should be noted, however, that as the Internet becomes ubiquitous and more complex, there remains the possibility that large-scale, virtual direct democracy could have a resurgence.

Currently, however, the dominant form of direct democracy is not the town meeting, but rather ballot measures such as initiative and recall. Such ballot measures do not typically constitute the entire decision-making apparatus of modern democracies, but rather complement representative government to a greater or lesser degree. In the United States, there are no mechanisms of direct democracy at the national level; but ballot measures play a very significant role in the governance of many state and local governments, including notably in the largest state, California. In Europe, nations vary significantly in the degree to which they supplement representative government with direct democracy, from a very significant or even primary role in Switzerland, to a far lesser role in larger democracies. But even the largest, most traditionally representative democracies of Europe sometimes turn to direct democratic mechanisms, as illustrated by the Brexit referendum of 2016 in the United Kingdom and the referenda on the proposed European Constitution held in France and the Netherlands in 2005.

Nevertheless, there can be no doubt that the dominant form of democracy in the modern world is representative democracy. Every major democratic nation in the world allocates primary legislative and executive authority to representatives of the people, and requires regular elections to select those representatives. Representative democracies, however, vary widely in their forms of democracy, including along the axes discussed below and one distinction—presidential versus parliamentary democracy—which is not addressed here.

What, then, are the implications of the direct/representative axis for free expression? Potentially they are quite significant. For starters, in a pure, direct democracy of the Athenian/New England mode it might be that only very limited free expression rights would be required outside of the assembly (though admittedly, this is a largely hypothetical point since in the modern world, the few such democracies that exist are embedded within broader representative democracies). Within the assembly, of course, strong rights of free expression would be essential or the entire deliberative process of decision-making that direct democracy relies upon would be eviscerated. The analogy here is to the parliamentary privilege of free speech recognized in the English Bill of Rights of 1689, 70 and in the Speech and Debate Clause of Article I of the US Constitution. 71 Outside of the meeting, however, it is not clear to what extent pure direct democracy, as opposed to ballot measures, requires strong protections for free expression. Presumably, the opportunity to participate directly in decision-making would vindicate the legitimization interest fully, so long as all citizens are given the opportunity to participate fully in the debate. 72 Speech outside of, and in-between, formal democratic meetings does advance the informing function to some extent, but given the opportunity to inform the electorate during the meeting, the need for general public discourse in a direct democracy is at the least reduced. In practice, however, since modern direct democracies are universally situated within broader representative democracies, speech outside meetings must of course be protected in order to enable participation in that broader democracy.

When one turns to the relationship between free expression and direct democracy via ballot measures, the story becomes more complex. At first cut, there would seem to be no difference between such direct democracy and representative democracy vis-à-vis free speech. In both instances, presumably strong protection for free expression (and association and assembly) is essential, since it is through public discourse that citizens will become informed about the issues. And in both instances the opportunity to participate in public discourse will promote legitimacy in both its descriptive and normative sense. There is, however, one important difference between ballot initiative democracy and representative democracy. In a representative democracy, as noted earlier, a substantial role of free expression is to permit citizens to express their views to their representatives , either directly to them or through the formation of public opinion, between elections. And similarly, an important role of free expression (especially in the form of a free press) in such democracies is to oversee and check representatives. Both of these functions, however, are irrelevant in a direct democracy, even of the ballot measure variety. One obvious illustration of this point is that one of the core, expressive freedoms protected in the First Amendment to the US Constitution—the right ‘to petition the Government for a redress of grievances’ 73 —has little relevance to ballot measures. So even in a direct democracy through ballot measures, the scope of needed protection for free expression is somewhat narrower than in representative democracies.

5.4.2 Pluralist versus Deliberative Democracy

Aside from the distinction between direct and representative democracies, modern democratic theory also draws a distinction between pluralist (or liberal) democracies, and deliberative (sometimes called republican) democracies. Unlike the direct/representative axis, the distinction between pluralist and deliberative democracies does not focus so much on the actual mechanisms of democratic decision-making as on the ways in which citizens interact within broader democratic cultures. And here too, the distinctions drawn are better understood as an axis along which different systems vary rather than as sharply defined categories. Nevertheless, the differences between pluralist and deliberative approaches to democracy have important implications for freedom of expression.

Let us begin with pluralism. The pluralist vision of democracy is most associated with the US political scientist Robert Dahl 74 (though it can be traced back to James Madison’s 1787 discussion of factions in Federalist No 10). It envisions the democratic process as a series of contests between distinct interest groups seeking to control state power and obtain benefits from the state. Policy is advanced, and stability is achieved, through a process by which government officials mediate between interest groups to form working majorities. Individuals themselves influence policy through their membership in interest groups, but because no particular interest group is ever likely to represent a majority, compromise and co-operation lie at the heart of the pluralist vision of democratic politics.

Pluralism is a form of democracy because it is in part through democratic mechanisms such as elections and political parties that interest groups seek to influence government officials—though pluralist theory tends to emphasize informal means of obtaining responsiveness and accountability at least as much as formal democratic processes. Furthermore, precisely because individual citizens’ interests are defended and advanced by organized interest groups, pluralism permits a democracy to consist of many inactive or disengaged citizens who nonetheless may be said to indirectly participate in the polity.

Finally, and perhaps most importantly, pluralism presumes that pre-existing private preferences are in place, and the job of democratic politics is to combine those disparate preferences into a coherent policy. In this sense, pluralism envisions citizens as actors in, but not as the subjects of, democratic politics. Citizens have desires, express those desires through interest groups, and seek to obtain policies from the state which advance those preferences.

The primary modern alternative to the pluralist model of democracy is deliberative democracy, the leading modern theorist of which is the German philosopher and sociologist Jürgen Habermas. 75 Other leading proponents of deliberative democracy include the US legal scholar Cass Sunstein, 76 and the political scientist James Fishkin. 77 The crucial differences between deliberative and pluralist democracies lie in how citizens are seen to interact with one another and with the democratic system. First, and perhaps foremost, deliberative democracy does not take citizens’ interests and preferences as given. Instead, citizens engage in dialogue and discourse with one another in order to shape and influence one another’s preferences. As Sunstein puts it, the purpose of a system of deliberative democracy ‘is to ensure discussion and debate among people who are genuinely different in their perspectives and position, in the interests of creating a process through which reflection will encourage the emergence of general truths’. 78 Just as citizens participate in and shape the deliberative process, so too they are shaped by that process.

The corollary of deliberative democracy’s rejection of pre-existing preferences is its further rejection of pluralism’s vision of the democratic process as simply combining or accommodating conflicting preferences. To the contrary, deliberative theories of democracy see political participation as a positive right and duty. And more significantly, through that process of participation citizens ‘become aware of their dependence on one another’ and develop ‘the orientation to the common good’. 79 For this reason, deliberative democracy requires citizens to give reasons for their positions rather than simply express them as bald preferences. Public reasoning lies at the heart of deliberative democracy. Finally, it is highly significant that the deliberative discourse envisioned by deliberative democracy does not occur within the auspices of, or even in the shadow of, the state and public officials. It is rather a process for citizens, by which citizens construct the public will. Of course, in representative systems deliberation is not limited to citizens but must also occur among representatives to the legislative body; but nonetheless citizens committed to the greater good are the core participants in deliberative democracies.

The differences between pluralist and deliberative approaches to democracy have important implications for freedom of expression. Both of course require some significant protections for free expression if they are to function. Pluralism, for example, cannot operate unless strong protection is provided to freedom of association, so that interest groups, the primary actors in pluralist democracies, can organize themselves. Pluralism also requires strong protection for expressive activities through which citizens and interest groups effectively advocate their preferences to government officials. Indeed, given the centrality of interest groups to pluralism, it would appear that pluralism requires the strongest level of protection be given to the speech of such groups, even over the speech of individuals. 80

There are, however, limits to the sorts of protection of free expression that pluralism requires. Most importantly, because pluralism takes preferences as a given, it provides little support for protections for speech beyond the political sphere (such as literary or other cultural speech). And regarding associational rights, pluralism again suggests a relatively narrow right that protects associations that are involved in the process of interest-group politics, but not to other groups more focused on cultural or personal topics. Pluralism concerns itself with the organization of interest groups, and their ability to engage in a back-and-forth dialogue with each other and public officials, because these activities sit at the heart of pluralistic democracy. But beyond these processes, pluralism has little to say about free expression.

Deliberative democracy, on the other hand, necessarily requires protecting a far broader scope of freedom of expression and association. Deliberative democracy requires almost absolute protection for discourse among citizens, because that is the primary focus of such a system. And because democratic discourse is intended to shape preferences and values, not just aggregate them, the range of expression requiring protection is also far greater. It encompasses cultural, scientific, and other topics that are crucial to the formation of preferences and, ultimately, to the creation of the public will. Similarly, public discourse can occur in the broad public square, but also within the confines of a vast array of private associations touching on a vast array of subjects relevant to personal and political preferences, and to the character, of citizens. 81 Indeed, the interesting question is not whether deliberative democracy requires capacious protections for expressive activities and groups—it clearly does—it is whether within a system of deliberative democracy any restrictions on political, cultural, or scientific speech—beyond, of course, those necessary to prevent immediate and tangible social harm—are permissible. That question is explored further in the next section.

5.4.3 Substantive versus Proceduralist Democracy

Another axis along which democracies vary is the extent to which they emphasize specific substantive outcomes that they envision democratic processes must produce, as opposed to focusing mainly or only on democratic procedures, remaining agnostic to the policy outcomes those procedures result in. This distinction is relevant to all forms of democracy but it becomes most salient in discussions of deliberative democracy. And finally, the degree to which a democracy concludes that specific substantive outcomes such as permitting private discrimination based on race, sex, or sexual orientation are incontestable will influence the scope of protections it accords to free expression.

As Habermas points out, even within the broad camp of deliberative democracy, sharp differences exist regarding whether democracy mandates specific substantive outcomes. Many if not most theorists of deliberative democracy assume that proper and effective deliberation will produce a ‘communitarian’ outcome in which citizens are committed to a broadly accepted public good and to ‘a concrete, substantively integrated ethical community’. 82 Habermas, on the other hand, defends a more proceduralist vision of deliberative democracy that he labels ‘discourse theory’. Discourse theory accepts the existence of unbridgeable differences among citizens, and so rejects the inevitability of the communitarian consensus envisioned by what Habermas labels republican democracy theory. 83 In this sense, discourse theory resembles pluralist or liberal democracy. But Habermas insists that discourse theory differs from pluralism in that it does not see politics as simply the aggregation and reconciling of private preferences. Instead, it emphasizes dialogue and deliberation across differences—though given differences, some compromise is inevitable.

How might an orientation towards substantive versus proceduralist accounts of deliberative democracy influence attitudes towards freedom of expression? At an abstract level, substantive versions of democracy take a primarily instrumental view of free expression (and for that matter, democracy itself), as means for achieving the ‘correct’ deliberative ends: the discovery of the public good and its manifestation as public opinion. But these accounts do not value speech, or even deliberation, for its own sake. For that reason, as Robert Post points out, substantive communitarian (what he calls ‘collective’) approaches to democracy tend to permit a greater managerial role for the state in guiding deliberation and speech towards appropriate ends. 84 Proceduralist accounts, however, value discourse and deliberation for their own sakes, as the essence of democracy and as the means for legitimization of the state. 85 As such, and because of the lack of prescribed outcomes for deliberation, proceduralists would allow a substantially broader range of ethical and moral issues to enter into the deliberative process, and so into the scope of protected expression.

As a practical matter, in recent years the distinction between substantive and proceduralist accounts of democracy tend to manifest themselves in debates over, on the one hand, multiculturalism, and on the other hand, expression, which can be considered discriminatory or derogatory—or as more commonly labelled, hate speech. Most substantive accounts of democracy assume that the political process—whether it be pluralistic or deliberative—will result in a polity and policies which demonstrate tolerance, mutual respect, and an embrace of diversity. Only so, after all, can a common will emerge. The clear implication of this presumption is that speech which undermines this process by treating particular groups—racial and religious minorities, women, LGBT (lesbian, gay, bisexual, and transgender) individuals, or members of other historically marginalized groups—as outsiders not deserving of mutual respect has no place in a democracy. Such speech in no way advances the goals of either democratic deliberation or even democratic bargaining (in a pluralistic model), and so is deserving of no protection. To the contrary, by silencing voices and excluding victims’ voices from the democratic process, such speech actively undermines democracy and prevents the achievement of consensus. 86 As such, an argument can be made that in a strongly substantive vision of democracy the state not only need not tolerate, but to the contrary has a positive obligation to suppress hate speech.

From a proceduralist perspective, the story is more complicated. Certainly a similar story can be told, that hate speech tends to exclude victims from the deliberative process, and so is inconsistent with even a proceduralist account of deliberative democracy. 87 But the countervailing argument is that unlike substantive accounts, a proceduralist account of democracy cannot assume any particular outcome of the deliberative process, including a tolerant one. To permit the suppression of speech that some might consider hateful poses a problem then for two separate reasons. First, such suppression imposes what Habermas calls ‘an ethical constriction of political discourse ’ without resolving where the ethical standard comes from. 88 Relatedly, as noted above in Section 5.3.2 , like any viewpoint-based speech restriction on public discourse, suppression of hate speech prevents certain speakers from free and equal participation in the political process, and thus can have a detrimental effect on political legitimacy.

Second, a willingness to suppress hate speech presumes a consensus, an existing public will regarding the exact content of unprotected expression—that is, it requires an agreed upon definition of what constitutes hate speech. But in fact, such a consensus does not exist and in a proceduralist account cannot necessarily be expected to emerge. Examples of disagreements over the nature of speech to be excluded from discourse include speech broadly condemning of homosexual conduct from a religious perspective, or speech attacking racial preferences for minorities in employment or education. Some would consider either or both of these forms of expressions hateful, while others would not. Absent a strong substantive account of what democracy entails, it is difficult to see how a system that permits the suppression of hate speech would not run a significant risk of unduly circumscribing the deliberative process that is the life blood of democracy in a proceduralist account. Many proceduralists are likely to conclude that that is too high price to pay, despite the troubling possibility that hate speech itself may interfere with meaningful deliberation.

5.4.4 Libertarian versus Militant Democracy

The final axis considered here along which democracies vary is the degree to which they tolerate speech and associations that are opposed to and threaten the very democratic structures that enable democratic self-governance. At one end of the spectrum are democracies, which we might label libertarian democracies, which provide very strong protections even for anti-democratic speech and associations until the point is reached where such speech or groups actually threaten imminent political violence. At the other end of this spectrum is a form of democracy that has been labelled militant democracy (or alternatively ‘defensive democracy’ or ‘fighting democracy’). These are regimes which are willing to adopt restrictive and even illiberal measures, including notably restrictions on speech and association, which are deemed necessary to protect democracy itself not just from violent overthrow but also from non-violent subversion through originally democratic means (the exemplar of the latter being the rise to power of the Nazi Party in Germany in 1933 through the democratic process, which it then eliminated). 89 Since the very definitions of these forms of democracy turn on their willingness to restrict speech and association, this axis reveals radical disagreements among democratic nations about the relationship between speech, citizenship, and the state.

Libertarian democracies are characterized by a very high tolerance for speech and associations, such as fascist and communist speech and parties, which explicitly advocate and support the elimination or even the violent overthrow of democratic systems of government. The contemporary exemplar of such a democracy is the United States. Under US law, even speech which explicitly advocates the violent overthrow of democratic institutions or other forms of political violence may not be suppressed unless it can be proven that the speech ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’. 90 In the same 1969 decision that announced this standard, the US Supreme Court indicated that the same level of protection was due to organizations and assemblies that advocated violent overthrow of democratic government. 91 Under this approach, which remains the law today, it is almost impossible to suppress speech or associations based on the mere advocacy or possibility of political violence. Instead, extremely likely, imminent violence is required—a standard almost impossible to satisfy if no actual violence occurs. And if such violence does occur, the need to prosecute speech is limited. The cost of tolerating speech advocating political violence is, of course, that it creates the risk of serious violence occurring.

At the other side of the axis, modern Germany is generally considered a strong example, among Western democracies at least, of militant democracy. The term ‘militant democracy’ was first articulated by the exiled German political scientist Karl Loewenstein in 1937, in response to the Nazi Party’s overthrow of the German Weimar Republic. 92 The principle was adopted after World War II by the (then West) German Constitutional Court as an essential element of German democracy, and elements of militant democracy have also been incorporated into the constitutions of other European democracies, notably France and Spain. 93 And the embrace of militant democracy in these countries has not been merely rhetorical; it has led to extensive suppression of violent political parties and organizations by Germany and Spain. 94 Militant democracy, then, inevitably threatens to sacrifice potentially harmless expression in the name of social stability, just as libertarian democracy risks the converse.

5.5 Conclusion

This chapter has examined the relationship between free expression and democracy. Free expression, it has been shown, is an essential element of any system of democratic government, both because without free expression popular sovereignty would not be possible, and because restrictions on free expression undermine formal political equality among citizens. The chapter also examined two distinct functions that free expression plays in a democratic system of government: the informing function, which seeks to ensure that citizens have access to the information necessary to exercise their sovereign powers in an educated manner; and the legitimating function, by which citizens attribute legitimacy both to the system of government, and to specific laws, because they were able to participate in democratic discourse. Finally, the chapter surveyed various axes along which democracies vary among themselves, and explored the implications of those variations for protection of free expression.

It should be noted in closing, however, that while free expression is necessary for democracy, the actual protection of free expression required by democracy is limited. Certainly, democracy necessitates robust protection for discourse on political and policy matters, as well as on the actions and character of government officials. Furthermore, most forms of democracy also require protection for a broad range of cultural and scientific expression. But protection for many other forms of expression, such as commercial advertising and perhaps even music and abstract art, find little support in democratic theory. Justifications for protection of these forms of expression, if they are to be protected, must be found in theories of free speech other than democratic self-government.

Though it would be anachronistic to consider the practice as conferring a right, citizens in democratic ancient Athens were encouraged to engage in parrhesia, or ‘frank talk’, when speaking in the assembly: Arlene W Saxenhouse, Free Speech and Democracy in Ancient Athens (CUP 2006). As the fate of Socrates reveals, however, such frank talk was riskier outside the assembly.

Michael Kent Curtis, ‘In Pursuit of Liberty: The Levellers and the American Bill of Rights’ (1991) 8 Const Comment 359, 372.

Michael Kent Curtis, Free Speech, The People’s Darling Privilege (Duke UP 2000) 25.

Benedict De Spinoza, Theological-Political Treatise (Jonathan Israel ed, CUP 2007) 257, 259.

David Rabban, ‘The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History’ (1985) 37 Stan L Rev 795, 823–8. In a 1742 essay, David Hume defended freedom of the press in terms of Great Britain’s ‘mixed’ monarchical and republican form of government. See David Hume, ‘Of Liberty of the Press’ in Essays Moral, Political and Literary (5 Founders’ Constitution, Amendment I (Speech and Press)) < http://press-pubs.uchicago.edu/founders/documents/amendI_speechs2.html > accessed 29 December 2018.

Until the end of the eighteenth century, the term ‘democracy’ meant what we would today call ‘direct democracy’: Barry Holden, Understanding Liberal Democracy (2nd edn, Harvester Wheatsheaf 1993). At that time, the preferred word for systems characterized by democratic representation and divided powers was ‘republic’: see, eg, The Federalist No 10 (James Madison) (‘A republic, by which I mean a government in which the scheme of representation takes place’).

Frederick Schauer, Free Speech: A Philosophical Inquiry (CUP 1982) 36. Chapter 3 of that book, ‘The argument from democracy’, is an invaluable source for understanding the relationship between free speech and democracy. For another excellent treatment of the subject, see Eric Barendt, Freedom of Speech (2nd edn, OUP 2005) 18–23. For a discussion of democracy as the core principle of contemporary First Amendment doctrine, see Robert Post, ‘Participatory Democracy and Free Speech’ (2011) 97 Va L Rev 477; James Weinstein, ‘Participatory Democracy as the Central Value of American Free Speech Doctrine’ (2011) 97 Va L Rev 491, 498.

There are very few contemporary jurisdictions that are entirely direct democracies of the type that existed in ancient Athens: Bruno S Frey, Marcel Kucher, and Alois Stutzer, ‘Outcome, Process and Power in Direct Democracy’ (2001) 107 Pub Choice 271, 271. Rather, mechanisms of direct democracy such as initiatives and referenda frequently operate within representative democracies that commonly exist today.

‘Report on the Virginia Resolutions’ in Jonathan Elliot (ed), Debates in the Several State Conventions on the Adoption of the Federal Constitution (2nd edn, Lenox Hill 1836) vol 4, 569–70.

4 Annals of Cong. 934 (1794).

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 [21] (Lord Bingham). Similarly, the US Supreme Court has explained that ‘[t]he maintenance of the opportunity for free political discussion [is] to the end that government may be responsive to the will of the people’ ( Stromberg v California , 283 US 359, 369 (1931)). See also Roth v US , 354 US 476, 484 (1957) (‘The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’.); Faber v Hungary App no 40721/08 (ECtHR, 24 July 2012) (‘Freedom of expression, as secured in para 1 of art 10, constitutes one of the essential foundations of a democratic society’).

Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (Harper Brothers 1948) 26.

For a comprehensive discussion of the relationship between free speech, public opinion, and US democracy, see Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard UP 2014) 7–43. The discussion in this chapter of the role of public opinion in a democracy draws substantially from this work, especially the sources it quotes.

James Madison, ‘Public Opinion’ National Gazette (19 December 1791) in William T Hutchinson and others (eds), Papers of James Madison (U Virginia P 1983) vol 14.

James Wilson and Thomas McKean, Commentaries on the Constitution of the United States of America (J Debrett 1792) 30–1.

James Bryce, The American Commonwealth (Macmillan 1888) vol 3.

In contrast, other key figures in the early US Republic, including George Washington and Alexander Hamilton, were considerably more sceptical about the importance, indeed even the propriety, of public opinion, as well as of an active citizenry more generally, in a representative democracy. Ultimately, however, the Madisonian view prevailed. See Ashutosh Bhagwat, ‘The Democratic First Amendment’ (2016) 110 Nw U L Rev 1097, 1119–23.

Charles Horton Cooley, Social Organization: A Study of the Larger Mind (Charles Scribner’s Sons 1910) 85.

Hans Kelsen, A General Theory of Law and State (Anders Wedberg tr, Harvard UP 1945) 287–8.

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137.

Ibid 138–9.

HCJ 73/53, Kol Ha’am Company Limited v Minister of the Interior (1953) 7 PD 871 in Selected Judgment of the Supreme Court of Israel: 1948–1953 (Supreme Court of Israel 1948) vol 1, 90.

Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd [1986] 2 SCR 573.

Schauer (n 7) 40.

Karl Popper notes that Plato in his criticism of democracy and his story of the rise of the tyrant implicitly raised the issue of the people in a democracy restricting future exercises of their sovereignty. See Karl R Popper, The Open Society and Its Enemies, Part I: The Spell of Plato (Princeton UP 1950) vol 1, 122.

It is important to distinguish the proposition that freedom of expression is a necessary component of popular sovereignty and hence of democracy, from whether judicial enforcement of this freedom is similarly essential to democracy. The role of judicial enforcement in assuring effective freedom of expression in a given society is a large and difficult topic beyond the scope of this chapter. Suffice it to say that the inability of the judiciary to declare an act of the legislature void because it contravenes freedom of expression does not automatically render a society undemocratic if political norms are sufficiently strong to ensure that freedom of expression is not unduly restricted. This is demonstrated, for instance, by the British constitutional arrangement in which courts have never possessed the power to declare an act of parliament void, on free speech or any other grounds.

Immanuel Kant, The Metaphysics of Morals (first published 1797, Mary Gregor tr, CUP 1991); John Locke, Second Treatise of Government , (CB Macpherson ed, Hackett Publishing 1980) ch 2, ss 4, 6, 8, 9, and 52. See also the statement of Thomas Rainboro during the 1647 Putney debates: ‘Really I think that the poorest he that is in England has a life to live as the richest he; and therefore truly, Sir, I think it’s clear, that every man that is to live under a government ought first by his own consent to put himself under that government’: Robert A Licht (ed), Old Rights and New (American Enterprise Institute 1993) 54.

Formal political equality prohibits the government from treating people differently with regard to characteristics deemed irrelevant to one’s status as a citizen such as race, sex, and wealth. Substantive political equality requires the government to take measures to equalize citizens’ political power, including in some situations redistribution of resources necessary towards this end. In contrast to the universal commitment to formal political equality among contemporary democracies, no such consensus exists regarding substantive equality.

Schauer (n 7) 41, 62–3.

Robert A Dahl, Controlling Nuclear Weapons: Democracy versus Guardianship (Syracuse UP 1985) 5. See also Schauer (n 7) 44 (‘[e]qual participation by all people in the process of government is even more fundamental to the ideal of self-government than is the idea of majority power’).

Ludvig Beckman, ‘Who Should Vote? Conceptualizing Universal Suffrage in Studies of Democracy’ (2007) 15 Democratization 29, 29. The right to equal political participation is also reflected in the basic understanding that everyone should be entitled to cast the same number of votes (usually one) for a representative or a ballot proposition.

Because it is a component of formal rather than of substantive political equality, this right does not obligate government to equalize resources through which individuals seek to influence public opinion or to guarantee equal access to the media to express one’s views on matter of public concern. This right, however, does not, in principle at least, forbid such remedies.

Meiklejohn (n 12) 26.

This does not mean, however, that access to information and perspectives on matters of public concern is not important to the right of equal participation. See Section 5.3.1 , below.

Ronald Dworkin, ‘Foreword’ in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (OUP 2009) vii.

C Edwin Baker, ‘Autonomy and Free Speech’ (2011) 27 Const Comment 251, 263.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560.

Schauer (n 7) 41 (‘If everyone is to participate equally, then everyone must have the information necessary to make participation meaningful’). As Meiklejohn famously observed, ‘equality of status in the field of ideas lies deep in the very foundations of the self-governing process’: Meiklejohn (n 12) 26. Although Meiklejohn was, per usual, focusing on audience interests as it relates to well-informed voting, this observation also applies to the interest of speakers to participate equally in ‘the self-governing process’. In any event, this statement anticipated and influenced contemporary First Amendment doctrine’s intense hostility towards viewpoint discrimination. See, eg, Rosenberger v University of Virginia, 515 US 819, 829 (1995).

An important topic, but one beyond the scope of this chapter, is governmental regulation of expression justified as enhancing the informing function of freedom of expression and whether such regulations are consistent with democratic or other free speech norms.

The topic of freedom of expression and political legitimacy is explored at length in ‘Symposium: Hate Speech and Legitimacy’ (2017) 32 Const Comment 527.

Christopher H Wellman, ‘Liberalism, Samaritanism, and Political Legitimacy’ (1996) 25 Phil & Pub Aff 211, 211–12.

See, eg, A John Simmons, ‘Justification and Legitimacy’ (1999) 109 Ethics 739, 746 (arguing that ‘state legitimacy is the logical correlate of various obligations, including subjects’ political obligations’); Michael Huemer, The Problem of Political Authority (Palgrave Macmillan 2012) 12–14. Cf Rolf Sartorius, ‘Political Authority and Political Obligation’ (1981) 67 Va L Rev 3, 4 (concluding that ‘those in political power may often correctly claim a moral right to rule but that those under their power may not, under any philosophically interesting conditions, be said to have a correlative moral obligation to obey the law’).

Descriptive legitimacy is often referred to as ‘sociological’ legitimacy.

Frederick Schauer, ‘Does Freedom of Speech Increase Obedience to Law’ (2017) 32 Const Comment 661, 662.

Baker (n 40) 263. See also Robert Post, ‘Democracy, Popular Sovereignty, and Judicial Review’ (1998) 86 Cal L Rev 429, 434 (‘Finding it implausible to postulate [as did Rousseau] that the particular wills of individuals can be determinably identified with the specific enactments of the state, [modern] critics have suggested that democratic self-government requires that the particular will of individuals be connected instead to the system by which these enactments are created’).

Tom R Tyler, Why People Obey the Law (2nd edn, Princeton UP 2006) 163. See also Tom R Tyler, ‘Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities’ (2000) 25 L & Soc Inquiry 983, 995–6, 1007.

Tyler, Why People Obey the Law (n 53) 147.

Ibid 161–2. Additionally, these studies find that people’s increased belief in their having an obligation to obey the law results in their voluntary compliance with the law. Ibid 4, 27, 57, 62, 66. Conversely, ‘[i]f people have an experience not characterized by fair procedures, their later compliance will be based less strongly on the legitimacy of the legal authorities’. Ibid 172.

Indeed, a strong case could be made that the long-standing practice of disenfranchising African-Americans in various jurisdiction in the United States until the latter part of the twentieth century rendered the legal system in these jurisdictions illegitimate as to these disenfranchised citizens.

Post (n 52) 434.

Cohen v California , 403 US 15, 22 (1971).

In contrast, viewpoint-neutral bans on such vituperation will not substantially damage normative legitimacy. It has been forcefully argued that bans on such vituperation do not significantly interfere with a speakers’ ability to express the ‘propositional content’ of their views: Jeremy Waldron, ‘Conditions of Legitimacy of Legitimacy: A Response to James Weinstein’ (2017) 32 Const Comment 697. If this view is correct, then such speech restrictions would, at most, only minimally compromise the normative legitimating function of freedom of expression.

James Weinstein, ‘Hate Speech Bans, Democracy and Political Legitimacy’ (2017) 32 Const Comment 527.

Robert A Dahl, Polyarchy: Participation and Opposition (Yale UP 1971) 148–9.

Weinstein (n 62) 566–74. For a criticism of this view, see Waldron (n 61) 707–12.

Bull v Hall [2013] UKSC 73, [2018] 1 WLR 3741, [5].

Ibid. See also Lee v Ashers Baking Co , [2018] UKSC 49, [2018] 3 WLR 1294.

Weinstein (n 62) 555–61 (discussing, eg, a preacher fined under the UK public order act for displaying a placard in a public square proclaiming that homosexuality is immoral; the conviction and fine, overturned on appeal, of a French politician for saying that that homosexual behaviour was a threat to humanity and ‘morally inferior’ to heterosexuality; and the unsuccessful criminal prosecution of a Catholic bishop in Belgium for stating that homosexuality is a ‘blockage in normal psychological development, rendering [homosexuals] abnormal’).

See, eg, Jürgen Habermas, ‘Three Normative Models of Democracy’ (1994) 1 Constellations 1; David Held, Models of Democracy (3rd edn, Stanford UP 2006).

Alexander Meiklejohn, who as noted earlier was the leading US theorist of the relationship between free speech and democracy, was much enamoured of the New England town meeting and used it as his fundamental model of democracy. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (OUP 1965) 24.

Bill of Rights 1689 (‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’).

US Const art I, § 6 (‘for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place’).

This last caveat indicates that Alexander Meiklejohn was wrong when he famously stated, regarding debate in direct democracies, that ‘[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said’. Meiklejohn (n 12) 26. While his statement might be true if one focuses only on the informational function as Meiklejohn does, it ignores the significance of the legitimization function, which for reasons noted earlier requires citizens to be able to participate in public discourse, not just to vote.

US Const amend I.

Robert A Dahl, A Preface to Democratic Theory (U Chicago P 1956); Robert A Dahl, Who Governs? Democracy and Power in an American City (Yale UP 1961); Robert A Dahl, Democracy and Its Critics (Yale UP 1989).

Habermas (n 68) 1. Habermas uses the terms ‘liberal’ and ‘republican’ democracy respectively instead of ‘pluralist’ and ‘deliberative’.

Cass R Sunstein, Democracy and the Problem of Free Speech (Free P 1995) ch 8.

James S Fishkin, Democracy and Deliberation: New Directions for Democratic Reform (Yale UP 1991).

Sunstein (n 76) 241.

Habermas (n 68) 1.

For an argument to this effect, see Ashutosh Bhagwat, ‘Associational Speech’ (2011) 120 Yale LJ 978.

Archon Fung, ‘Associations and Democracy: Between Theories, Hopes, and Realities’ (2003) 29 Ann Rev Soc 515, 524–6.

Habermas (n 68) 4. See also Robert Post, ‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse’ (1993) 64 U Colo L Rev 1109 (distinguishing between ‘collectivist’ approaches to democratic deliberation and approaches which emphasize ‘autonomy’).

Habermas (n 68) 5, 7–8.

Post (n 82) 1119–24.

Habermas (n 68) 8–9; Post (n 82) 1115–16.

For arguments for banning hate speech based upon such a silencing effect, see Alexander Brown, ‘Hate Speech Laws, Legitimacy and Precaution: A Reply to James Weinstein’ (2017) 32 Const Comment 599, 610–17; Katharine Gelber, ‘Hate Speech: Definitions & Empirical Evidence’ (2017) 32 Const Comment 619, 620–6; Adrienne Stone, ‘Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech’ (2017) 32 Const Comment 687, 688–95. For an argument that there is a ‘paucity of evidence’ that hate speech in public discourse (as opposed to speech in other settings) has such an effect, see James Weinstein, ‘Viewpoint Discrimination, Hate Speech, and Political Legitimacy’ (2017) 32 Const Comment 757–9.

Jeremy Waldron, ‘The Conditions of Legitimacy: A Response to James Weinstein’ (2017) 32 Const Comment 697, 713–14.

Habermas (n 68) 4 (emphasis in original).

Jan-Werner Müller, ‘Militant Democracy’ in Michael Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012).

Brandenburg v Ohio , 395 US 444, 447 (1969) (emphasis added).

Ibid 449, n 4.

Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I’ (1937) 31 Am Pol Sci Rev 417.

Müller (n 89) 1254.

Ibid 1258–60, 1263–4. See also Ian Cram, ‘Constitutional Responses to Extremist Political Associations: ETA, Batasuna and Democratic Norms’ (2008) 28 Legal Stud 68.

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The Decline of Freedom of Expression and Social Vulnerability in Western democracy

Aniceto masferrer.

University of Valencia, Valencia, Spain

Freedom of expression is a fundamental part of living in a free and open society and, above all, a basic need of every human being and a requirement to attain happiness. Its absence has relevant consequences, not only for individuals but also for the whole social community. This might explain why freedom of expression was, along with other freedoms (conscience and religion; thought, belief, opinion, including that of the press and other media of communication; peaceful assembly; and association), at the core of liberal constitutionalism, and constitutes, since the Second World War, an essential element of constitutional democracies. In a democracy, people should be allowed to express themselves to others freely. The paper, which is divided into five sections, points out that states are obliged to protect the exercise of that freedom not only because its very purpose is the common good and welfare of society but also because it is a requirement of any constitutional democracy. Otherwise, when people cannot express themselves, perhaps out of fear (not from ‘war’ but from different kinds of social pressure or ‘violence’ exerted by some lobbies, mass media, or governmental policies that are at odds with respect for the plurality of opinions), vulnerability arises. This weakens not only those individuals that are not allowed to express their thoughts but also those who do not dare to do it – or even not to think for themselves – under certain environmental pressures (exerted by states, international organizations, social media, or financial groups, lobbies, etc.). In the end, the decline of freedom of expression makes most people more vulnerable and jeopardizes the whole democratic system.

Introduction

Freedom of expression is a fundamental part of living in a free and open society and, above all, a basic need of every human being. From a legal perspective, freedom of expression was, along with other freedoms (conscience and religion; thought, belief, opinion, including that of the press and other media of communication; peaceful assembly; and association), at the core of liberal constitutionalism. It also constitutes, since the Second World War, an essential element of constitutional democracies [ 1 ]. In the 1941 State of the Union address, on Monday, 6th January 1941, in proposing four fundamental freedoms that people ought to enjoy, Franklin D. Roosevelt stated that “[t]he first is the freedom of speech and expression everywhere in the world”, followed by other three freedoms (of worship, from want and fear). As America entered the war, these “four freedoms” symbolized America’s war aims and gave hope in the following years to a war-wearied people because they knew they were fighting for freedom. Roosevelt equated “Freedom from fear” mainly with overcoming war and violence. [ 2 , 266–283].

This paper is divided into two parts. Part 1 will describe the relationship between public morality, freedom of expression and right to dissent in a democracy. This will be done with four sections: Sect.  2.1 will contain a brief presentation of the freedom of speech in the origins of modern constitutionalism; Sect.  2.2 will show the inextricable link between democracy and public morality and the two main models of the latter (libertarianism and perfectionism); Sect.  2.3 . Argues that, since public morality is a constituent part of any democratic society and a deliberative democracy requires that decisions be the product of fair and reasonable discussion and debate among citizens, public morality should be also shaped by citizens through the exercise of freedom of expression. In doing so, I will describe how to combine, in an open and plural society, the private morality of individuals in the social realm and the public morality reflected in the legal realm, and how democratic systems should allow – and even foster – through the exercise of freedom of expression, a constant flux between private moralities and public morality; and Sect.  2.4 . Argues that the freedom of expression necessarily requires the right to dissent because that is an essential part of its exercise, particularly in a deliberative democracy, and a human need according to the Aristotelian characterization of man as a political animal.

Part 2 will describe how the current freedom of expression crisis weakens society, making individuals less engaged in the community, more isolated, as if they were living among strangers, and, consequently, much more vulnerable. This part will be developed in four sections: Sect.  3.1 . Will show how the freedom of expression constitutes a condition for political liberalism (enhancing human development and social happiness); Sect.  3.2 . Will focus on the freedom of expression as a condition for democracy; Sect.  3.3 . Will show the threads of freedom of expression today, analyzing the vulnerable effects of the cancel culture; and Sect.  3.4 . Will show, as a particular case of criminalization of dissent, recent examples from Spanish law. Finally, some concluding remarks will be made.

Public Morality, Freedom of Expression and Right to Dissent in a Democracy

The making of freedom of expression in modern constitutionalism.

Freedom of expression is one of the most complex fundamental rights in modern Constitutions. This complexity is not new. It always has been [ 3 ]. Freedom of expression was already very present in the European enlightened cultural environment. Kant affirmed that “everyone has his inalienable rights, which he cannot give up even if he wishes to, and about which he is entitled to make his own judgments.” Furthermore, he added that among them was:

the right to publicly make his opinion known as what he considers unjust to the community in the sovereign’s provisions. To admit that the sovereign cannot even be mistaken or ignorant of anything would be to imagine him as a superhuman being endowed with heavenly inspiration. Consequently, the freedom of writing is the only defender of the rights of the people, as long as it remains within the limits of respect and love for the Constitution in which it lives, thanks to the liberal way of thinking of the subjects, which are also instilled by that Constitution, for which the writings further limit themselves mutually in order not to lose their freedom [ 4 – 6 ].

This cultural environment had consequences in the legal sphere [ 7 ]. First of all, in France, where on 26th August 1789, the Declaration of the Rights of Man and the Citizen was drafted, Article 11 of which reads as follows:

The unrestrained communication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write, and publish freely, provided he is responsible for the abuse of this liberty, in cases determined by law.

This principle was taken up two years later in the first French Constitution, 3rd September 1791, by establishing as natural and civil rights “the liberty to every man to speak, write, print, and publish his opinions.” This freedom did not only germinate in Europe but also in America. A few months after the aforementioned French constitutional text, the United States adopted the First Amendment to its 1791 Constitution:

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.

It is possible that the following statement by Alexis de Tocqueville emerged from the North-American experience:

Sovereignty of the people and freedom of the press are two entirely correlative things. Censorship and universal suffrage are, on the contrary, two things that contradict each other and that cannot exist together for long in the political institutions of the same people [21:3].

In Spain, freedom of expression emerged in the context of the War of Independence (1808–1814). Specifically, the Cortes of Cadiz approved two Decrees in this regard, one of 10th November 1810 and the other of 10th June 1813. Article 371 of the Constitution of Cadiz (1812), taking up Article I of the 1810 Decree, provided:

All Spaniards are free to write, print and publish their political ideas without the need for any license, revision or approval prior to publication, subject to the restrictions and liability established by law.

The 1869 Constitution was particularly relevant because it referred, for the first time, to the oral expression of thought, in its Article 17:

Nor may any Spaniard be deprived: Of the right to freely express their ideas and opinions, either orally or in writing, by means of the printing press or any other similar process.

Until then, freedom of (oral) expression was understood to be included within the freedom of written expression, that is, freedom of the press and printing press.

The other Spanish Constitutions took up freedom of expression in general from that time onwards, sometimes explicitly mentioning orality. Thus, for example, the Preliminary Title of the Draft Federal Constitution of the First Spanish Republic (1874) after stating that “Every person is assured in the Republic, without any power having the power to inhibit them, nor any law authority to diminish them, all natural rights”, included “the right to the free exercise of thought and the free expression of conscience.” Shortly afterward, the Constitution of 1876 established, in Article 13, that:

Every Spaniard has the right: To freely express their ideas and opinions, either by word or in writing, by means of the printing press or any other similar process, without being subject to prior censorship.

In similar terms, this right was enshrined in Article 34 of the Constitution of the Second Republic (1931):

Everyone has the right to freely express their ideas and opinions, using any means of dissemination, without being subject to prior censorship.

However, one might ask how the exercise of this right worked in practice throughout Spanish constitutionalism. 1 The answer can be found in the literature showing the complexity of exercising this freedom [ 8 ]. During the Liberal Triennium (1820–1823), for example, it seems that the freedom of expression encountered two groups that threatened its exercise within the strict constitutional framework. First, there were some clergymen, whose sermons could become highly critical of the constitutional regime, thus leading to the approval of a statute (‘Orden’) of 30th April 1821. Second to object were some in the exalted sector of liberalism, which used freedom of the press to incite disobedience, slander, disorder, and anarchy. As a result of the concern for the correct exercise of freedom of expression, several Decrees were passed during the Liberal Triennium: 22nd October 1820, and the complementary Decrees of 17th April 1821 and 12th February 1822. The first Spanish Criminal Code also included several criminal offenses, which came to limit the framework for exercising this freedom. And so have all the criminal codes up to the present day (1848/50, 1870, 1928, 1932, 1944, and 1995).

This brief historical introduction to the freedom of expression is enough to show that the exercise of this right, present since the origins of modern constitutionalism, has always had – and will continue to have – enemies. In the nineteenth century, it was some ecclesiastics and some exalted liberals: some preventing expression on matters of faith and morals, others inciting disobedience, slander and disorder. At present, some essential requirements for the exercise of freedom of expression in the framework of plural and mature democratic societies are notably neglected: to reflect critically on the problems, to think for oneself, respectfully express one’s ideas, and adopt a positive attitude of listening to others, in order to learn from everyone and in particular from those who do not share one’s way of thinking. These are the inescapable conditions of freedom of expression that the law must safeguard and foster. Otherwise, the free development of each individual’s personality is precluded (art. 10 CE), other freedoms are curtailed (such as those of thought and conscience), and democracy becomes a formal or aesthetic reality, void of content and subject to various forces of totalitarian domination. In this vein – as will be seen –, to prohibit the expression of dissent on controversial issues (such as the beginning and end of life, family, sexual morality, etc.) would be to return – at the very least – to the regime of freedom of expression of the early nineteenth century, in which questions of Christian faith and morals were excluded from the exercise of freedom of expression, and anyone who expressed dissent was punished.

I can understand – although one might disagree with it – that this would happen in the framework of a confessional or denominational state (as in the nineteenth century). However, it would make no sense in today’s framework of constitutional democracy. In this sense, the use of double standards when judging – or even legislating – the scope and limits of the exercise of freedom of expression and freedom of information, depending on for what and for whom, preventing some from even speaking and allowing others to insult and slander, not only constitutes an unequivocal sign of a broken and sick democracy – perhaps deathly – but it leaves all its individuals, both those who choose to conform to the majority opinion and those who are willing to express their disagreement, in a vulnerable situation. This vulnerability of individuals is a reflection of the fragility of democracy. The strengthening of democracy also implies strengthening individuals and vice versa. For this, the safeguarding and fostering of freedom of expression constitute a sine qua non requirement.

Public Morality and its Models: Libertarianism vs. Perfectionism

In a true, rather than in a merely formal democracy, the exercise of freedom of expression by citizens should be the fundamental element in shaping the public morality of society. A citizen might feel more or less identified with a particular public ethic, but he/she should never ignore it. Furthermore, the law should promote the contribution of each individual in the never-ending process of shaping public morality. However, what exactly is public morality?

Public morality is a reality, whether we like it or not [ 4 , 9 – 12 ]. Ultimately, it is that set of beliefs and values generally assumed by society, by each society, which has its differential elements depending on the geographical context and that tend to change and evolve over time [ 13 , 268–277]. The values that underpin a country’s society at a given moment in history – like the transition, for instance – can have little to do with the values that the same society is underpinned by sometime later. 2

A society cannot fail to be based on principles and values that its citizens widely accept. The common acceptance of these principles and values (public ethics) builds stable societies, even though some people may claim otherwise or proclaim themselves liberal and present themselves as supposedly neutral towards any value or ethical principle. Being liberal does not imply being unethical, but it entails assuming a specific type of ethics. There is a liberal who tends to present himself as tolerant and boasts of respecting all positions but accuses those who do not share his stance of being intolerant and of attempting to impose their ethics on the rest of society. This is a well-known demagogic device that nevertheless leaves many without knowing what to say or how to respond. This is the stance adopted by the so-called ‘Libertarianism’ movement in the United States, whose supporters take the liberty of criticizing – and even disqualifying – those who maintain that society needs somewhat more demanding ethical rules that guarantee a minimum of standards of justice that are indispensable for stable and peaceful coexistence [ 14 ]. 3

For libertarians, freedom is the fundamental ethical principle. Invoking an ethical demand to reduce a person’s capacity to make choices and decisions in any area is interpreted as an illegitimate interference or an unacceptable encroachment. Libertarians understand that no one can be constrained or limited in their decisions by any ethical imperative that seeks to impose on one’s own will [ 3 , 6 , 13 , 15 – 24 ]. 4 For this conception, it would be just as unacceptable to force someone to end their life as it would be to prevent someone from being able to make that decision if that is what they desire. It would be just as unacceptable to force a woman to have an abortion as it would be to forbid her from having one if that is what she wishes. It would be just as unacceptable to force someone into prostitution as it would be to stop them from doing so if that is what they want. It would be just as unacceptable to force someone to try drugs as it would be to prohibit them from doing so if this was their will, and so on. The same applies to many other areas like economics (capitalism, communism, liberalism, neoliberalism, protectionism, etc.) or sexuality (prostitution, pornography, bigamy, pedophilia, polygamy/polyandry, polyamory, incest, etc.), among others.

At the other extreme is the so-called ‘Perfectionism’ trend, which upholds more rigorous standards of public ethics. Its supporters believe that it is the virtue that should guarantee justice and social peace and that the climate of the political community should favor the virtuous conduct of its individuals. In short, they argue that society should contribute to shaping citizens of exemplary conduct, thus positively impacting society as a whole. According to this perspective, the fundamental ethical principle is not so much the freedom of choice advocated by ‘libertarianism’ but the idea of the good, the promotion of virtuous conduct, and the idea of the good shared by society. From this point of view, in order to tackle complex issues (euthanasia, abortion, drugs, prostitution, incest, polygamy, etc.) [ 12 , 521–538, 21 , 320–358], the important thing would not be to “let everyone do what they want” – because the political community should neither oblige nor prohibit (libertarians) [ 25 ] 5 – but to establish “what is good for the individual and society as a whole,” a doctrine which has its roots in authors such as Plato [ 26 ], Aristotle [ 27 ], and Thomas Aquinas [ 28 , 29 ], among others [ 2 , 7 , 17 , 22 – 27 , 30 – 58 ]. 6

Both currents, present in some form in all Western societies, are irreconcilable and struggle to impose themselves on the public ethics of each political community. To attain this, they need to introduce their presuppositions into education, culture, the media, social networks, cinema, literature, etc. Moreover, the quickest way to achieve this is to introduce them into government programs and to use the law as a tool for change. With the law, it is somehow swift and easy to reform education, making it possible to mold the minds of an entire generation in little more than a decade through the curricula of compulsory education. By changing the laws [ 2 , 7 , 9 , 25 – 27 , 30 – 50 , 57 ], history and language can be changed, even at the cost of trampling its scientific status with ideological or partisan manipulations. Power can favor a particular type of culture (cinema, art, etc.) by subsidizing television channels and media groups that disseminate it and ignoring others; it can also bail out certain companies while leaving others to go under, etc.

This is well known to everyone, but it is occasionally forgotten that the libertarian currents are not as innocent as they preach and use the law to impose their principles, as much or more than the perfectionist currents, despite presenting their measures or legal reforms as ethically aseptic. In this sense, promoting a law that prohibits euthanasia, opting instead to promote palliative medicine and care for the terminally ill, so that they prefer to live rather than die, should be considered as moral – or immoral, depending on one’s position – as promoting another law which financially supports those who decide to end their lives [ 59 , 60 ]. One can disagree about what is ethically correct, but it cannot be stated that the first of these proposals imposes an ethical option and the other does not. There is a clear and undeniable ethical background in both [ 57 ], even if the second neither prohibits nor compels and subsidizes an individual’s wish to die, while the other prohibits killing and funds better care for the sick by facilitating their access to palliative care in the hope that they will prefer to continue living.

In my case, I must admit that, precisely because I believe in and love freedom, I do not identify myself with libertarians or perfectionists. I do not identify with the former because it does not seem reasonable to me to maintain that freedom, understood as a mere capacity to choose, is a guarantee of a truly human life and society; in fact, it is evident that there are decisions that make one better as a person (for example, trying to work well and in a spirit of service to others) and others that make one worse (working shoddily, trying to look good or cheating others). Nor do I identify with the latter when perfectionism is interpreted as the imposition of an idea of the good that is totalitarian and disrespectful to the individual because I understand that it should be each person who freely decides for the good and should never adhere to it “forced” by a paternalistic government or laws that do not allow one to choose the opposite.

I understand that the law must safeguard and foster minimum requirements of justice, reflected in the three basic rules of the jurist Ulpian: live honestly, do not harm others, and give each one what is theirs. However, the State and the Law should not go beyond these requirements (because their task is not to make citizens good but to create the minimum conditions of justice that allow a stable and peaceful coexistence). In reality, only everyone can become good (and not just fair) when they freely choose to do what is good (not merely fair) and do it for a good or right reason (and not because it is so legally prescribed). Neither the State nor the Law can make me good: I can only become good when I freely choose to do what is good and do it for a good (or right) reason. In case the State or the Law forced someone to do good (in the event that this was legally prescribed), that by itself would not make him/her a good person because there would be a lack of freedom (to do it for being good and not for being legally mandated). Only from freedom – not from imposition or coercion – can one become good by doing good (although it is also possible to adjust one’s conduct under the law, not because it is legally prescribed but because it understands and identifies with the good that the legal norm pursues).

Public Morality, Deliberative Democracy and Freedom of Expression

The fundamental question concerning public morality is not whether it is possible or desirable for a society to have it or not to have it. In reality, society always has it and can never cease to have it. What is relevant, especially in a democratic society, is how and who should shape the values and principles that govern that society. In my view, the principal shapers of public ethics should be the citizens themselves. I think that in a free and plural democracy, the State should not be the primary agent shaping the fundamental values that underpin social coexistence, nor should the big business, media and financial groups. That is a fundamental requirement of deliberative democracy [ 29 , 39 , 40 , 61 – 68 ]. 7 Otherwise, democracy becomes corrupted and turns into demagogy, quickly leading to an authoritarian or totalitarian regime. This process of democratic corruption is precluded when the political freedom of a community is based on the sum of individual freedoms, not in the abstract, but in their concrete and free exercise.

For that reason, citizens need to think for themselves, express their thoughts publicly in a climate of freedom – regardless of what they think – and contribute, within their means, to shaping the public ethics of the society in which they live. Furthermore, in a democracy, public ethics should be a dynamic reality, in constant movement, even when some of its parts have crystallized or have been enshrined in a legal norm. Therefore, the law should not prevent citizens from being able to think and express doctrines that are contrary to the hegemonic public ethics at a particular time. Hence, the importance of freedom of expression is that, although it is not the most important fundamental right (the right to life, for example, is the first and makes the exercise of the others possible), it is the most fundamental and genuine right in any democracy.

One could ask oneself the following questions: how can the dilemma between the exercise of individual freedom (in accordance with the personal ethics of the citizen) and the general character of the law (reflecting public ethics) be resolved? How can different ethics coexist in the same society, namely public ethics (principles more or less common to the majority and endorsed by law) and different private ethics (of each citizen)? To what extent, in a democratic regime can the State prohibit dissent or prevent a citizen from expressing their private morality when it is contrary to or different from public morality? This is, undoubtedly, a key question in any democracy worthy of the name. On the one hand, it is logical and understandable that the State should enact laws that reflect the prevailing public ethics of society at a given time. To do otherwise would be suspicious or worrying. Once the law has sanctioned some principle of public ethics, it is reasonable to prohibit conduct that violates it. However – and here comes the critical nuance – it is one thing to prohibit conduct contrary to fundamental values and quite another to prohibit opinion. The law should never prohibit the expression of dissenting opinions, as long as they do not constitute a severe and real threat to coexistence (encouraging hatred, violence, etc.) or a direct attack on the rights of third parties.

It should prohibit, however – in my opinion – dissenting expressions which have the effect of excluding, mocking and humiliating those who do not share any of the principles of a specific public morality should not be admissible, even if the law allows it in some cases. Let me put an example. If public morality, reflected in legislation, did not allow people to go into the street naked, they could be sanctioned, but a constitutional democracy should never punish those who, judging it a good thing to be able to go naked in the street – even if they were not legally allowed to do so – could at least express their opinion and defend – without the threat of any punishment – their dissenting stance; that is to say, support – for the free development of one’s own personality – the desirability of the citizen being able to go naked in the street or propose the creation of zones or urbanizations in which people could go naked in the street. The State should not deprive that person of the freedom to express what they think. In this fashion, freedom of expression would play its proper role in bridging the gap between ‘public morality’ and ‘private morality,’ promoting a constant ebb and flow between one morality and the other. This dynamism, characteristic of a genuinely free and pluralistic democracy, would prevent the totalitarian attitude of those who demand maximum freedom of expression when they claim their ideas for a new ‘public morality’ (think of May 68) and prohibit dissent when they have already succeeded in shaping a public morality following their ideas (which is what is currently happening with legislation on sexual freedom and gender identity) [ 6 , 13 , 19 , 19 – 24 , 52 – 54 , 57 , 59 , 67 , 69 , 70 – 74 ].

Continuing with the previous example, if the day arrives in which nudism – being able to wander around the street naked – becomes part of public morality, should the State be allowed to prohibit the expression of dissent? Absolutely not; it should not be prohibited at all, and even less so – as is done with certain groups – by resorting to the principle of non-discriminatory freedom, with a line of argument as simplistic as the following: “if everyone can walk down the street as they wish, why discriminate against the nudist group? If you are not forced to go out naked, why do you seek to impose your position on everyone, preventing anyone from being able to go out naked? Why don’t you let others make their own moral choices?”. If one admits that the fundamental source and criterion of the principle of non-discriminatory freedom is of a strictly subjective order and does not take into account the good of the community as a whole – because one believes that this good does not exist, that the good is always something private, subjective and immanent –, the egalitarian or non-discriminatory argument can become, in the hands of the State, a dangerous tool of totalitarian imposition, which is incompatible with an authentic constitutional democracy.

The tendency to excessively restrict or entirely prohibit freedom of expression when talking about specific groups is another sign of the current fragility of exercising this fundamental right. Some argue that the mere dissenting expression about the ways of life of particular groups would constitute an incitement to hatred that, as such, should be criminalized. Although it may seem exaggerated, for them, it is not at all because they understand this discrepancy concerning some forms of life as an affront or offense to the group of people who shape their lives according to that model. As it is not possible to generalize this principle in all cases (because, if done, one could not disagree on almost anything), it starts from the ‘victimization’ of a group (based on the commission of civil and criminal offenses by some against those who belong to the group) to extend the criminalization of any discrepancy with respect to that group because it is considered hate speech. They lose sight, however, that this type of criminalization usually has a boomerang effect, which goes from one extreme to another, and rarely settles in the reasonable point of moderation that would imply punishing only those who inflict insults, humiliations or injuries, and not criminally prosecute the rest of society for expressing their views on any model of life, as happens with the discrepancy towards other groups, some of them much reviled over many years or even centuries. Of course, it seems more reasonable to punish those who insult and commit aggressions against a person (regardless of the group to which they belong) and to allow citizens to express their ideas about any way of life (whether or not they refer to a group of any kind – religious, professional, cultural, sexual, etc.) [ 69 , 299–321].

Another symptom that demonstrates the poor quality or maturity of a democracy is the frequent use of labels or clichéd expressions to disqualify those who disagree (fascist, communist, fanatic, nationalist, pro-independence, philo-ethnic, homophobic, male chauvinist, far-right, far-left, etc.) This recourse, which is so frequent, especially in politics and the media, and which usually implies contempt or gross simplification of reality, does not seem to be the best way to promote freedom of expression and the spirit of dialogue that should characterize a constitutional democracy. Nevertheless, the problem for some is that they consider themselves so clear-headed and so entrenched in their ideological positions that they are unwilling to accept that, through dialogue and plural debate, consensus can be reached that is far removed from or alien to ‘their’ truth. When the majority supports their principles (they become public ethics), they prevent and prohibit dissent with the coercive force of laws and media pressure. However, when the majority does not share ‘their’ truth (private ethics), they promote disagreement in the name of freedom of expression and the right of minorities against the supposedly illegitimate impositions of the majority.

In summary, I argue that public morality should not be the result of the will of the State, nor of powerful lobbies (politicians, business people, media, and financial egalitarians), but the result of the exercise of the freedom of each and every citizen, who is called upon, to the extent of their possibilities, to shape the public ethics of their political community. In correspondence with what I have just stated, esteemed reader, I do not intend to convince you of anything, much less to convince you to think as I do. My purpose has been to freely express my critical reflections on a vital issue in any democratic society, and in ours in particular, in the hope of helping you to think for yourself and to encourage you to also have the courage to contribute, through your free and active participation, to the flourishing of a freer, more open, plural and mature democracy.

Democracy, Freedom of Expression and Right to Dissent

There is no democracy without freedom of expression, and this is only real if there is room for different, minority, or dissenting thoughts. Since this is the essence of democracy, dissent is essential in a democracy [ 23 , 848–852]. Rejecting dissent would lead to the end of deliberative democracy [ 20 , 75 ]. “Rule of majority is an integral part of democracy, but majoritarianism is the antithesis of democracy” [ 76 ].

Nobody would deny that dialogue and tolerance are critical to a pluralistic and inclusive democracy. However, few see dissent in a positive light, and even fewer are willing to accept it and engage in dialogue with it. Today’s culture is based on the idea that “the enemy is the other, the stranger” (Meinecke), that “hell is the other” whose gaze and judgment limit me, expose my limitation, humiliate me, not being able to escape from that judgment of others in the knowledge of myself (Sartre) [ 77 ]. Hence, the other can – and perhaps, must – be endured if their ideas and opinions are identical or similar to mine. If they are different but at least able to remain silent, their presence in society is still bearable and tolerable. Nonetheless, if one dares to disagree, to give reasons that may contribute to public deliberation, they should be silenced immediately. The dissenters are those who cross this line and dare to express their opinion publicly (alien or contrary to the majority), and this makes them a persona non grata and an enemy, thereby acquiring a new social – and, in part, also legal – vulnerable status because their rights happen to be more those of a law of war than those of a state governed by the rule of law.

It is paradoxical that today’s culture, so diverse and inclusive in theory, is hardly so in reality with relation to dissenting opinion. A US journalist based in Poland, Anne Applebaum, has just testified to this in a recently published book that has become a best-seller [ 36 ]. Applebaum experienced the consequences of expressing one’s own ideas, both in politics and society, to the point of being abandoned by educated people she had considered good friends. She also recounts how Western democracies are being besieged by authoritarianism that penetrates society with simple, false – or half-false – and radical messages, but which are attractive and have an effect. But reality is not reducible to simple messages, and simplistic approaches often contain falsehoods or half-truths on which the authoritarian mentality feeds. Political psychologist Karen Stenner argues that those who want to impose their own way of seeing reality do not tolerate complexity, nor do they wish to understand that certain events are rooted in a variety of factors [ 36 ].

Dissent is seen as something annoying and unpleasant which is to be stoically endured, but not as an essential means of enriching one’s own thinking, let alone as a requirement for public deliberation of what is suitable for each society. Hence the title of Arthur C. Brooks’ book: Love Your Enemies: How Decent People Can Save America from our Culture of Contempt [ 42 ]. For Brooks, society will be saved by those who can love their enemies, not by those who indulge in a culture of contempt for their enemies, i.e., those who disagree, those who think differently.

Disagreement is required for one reason of elementary education and for another one of common sense in having to coexist with people with different visions in the framework of a plural democracy. However, there is another more important reason: only disagreement allows us to reach a broader and more complete vision of reality, which is never simple, flat, and uniform, but rich, complex and multifaceted. The scientist Karl R. Popper said that “the increase of knowledge depends entirely on the existence of disagreement.” It has also been said, and rightly so, that “the ability to listen to intelligent people who disagree with you is a hard talent to find” (Ken Follet). It is easier to cuddle up to those who please us, as children do, because, as Kant said, “it is so easy to be a minor!” The opposite happens to me: I am attracted to those who have the courage to disagree. The same happened with the French philosopher Michel de Montaigne, who said that “when they contradict me, they arouse my attention, not my anger; I offer myself to those who contradict me, who instruct me. The cause of truth should be the common cause of one and the other”. A society is more mature and democratic when its individuals can be friends with those who do not think as they do, see those who disagree with their ideas as someone who helps and enriches them, and not as a nuisance and an obstacle to their fulfillment. To be friends only with those whose ideas we like and share is to remain immature, to renounce a fullness that implies the recognition that one does not have the whole truth and that I can only get closer to it by listening to and understanding the point of view of others.

There are those who understand democracy as the source and oracle of truth and goodness. They conceive the State as the modern inquisition whose function is to decide what can and cannot be said, what can and cannot be disagreed about. They are entirely wrong. The essence of democracy lies in guaranteeing fundamental freedoms. The first one in the public sphere is to allow everyone, without excluding anyone, to contribute to public deliberation. Freedom of expression is only real if it includes the right to disagree on any topic, without exception, because this is the essence of democracy in a state governed by the rule of law, not the defense of certain goods or truths to the point of prohibiting dissent. Moreover, “democracy is strengthened by disagreement. Unanimities are the path to totalitarianism,” as stated by the Argentinean politician Ricardo Balbín. What truly threatens democracy is not a way of understanding the good or truth but rather prohibiting – legally, politically, mediatically or socially – dissent, imposing a “culture of cancellation” that leaves the civil, professional and media dissenter dead, euphemistically ‘cancelled’, as has been lucidly described by Alan Dershowtiz [ 49 ].

Hence, I totally agree with Voltaire’s apocryphal saying: “I do not share what you say, but I will defend to the death your right to say it” [ 78 ]. This should be the spirit and mentality of a genuinely democratic society. Otherwise, each time one is prevented from dissenting or, in doing so, is sanctioned, vilified, insulted, stigmatized, or labeled (as “fascist,” “communist,” “homophobic,” “populist,” etc.) by others, particularly in the political, media or academic sphere, we are becoming a less pluralistic and democratic society, and a more authoritarian or totalitarian one.

The Decline of Freedom of Expression and the Increase of Social Vulnerability

Freedom of expression as a condition for political liberalism: human development and social happiness.

As suggested at the beginning of this article, freedom of expression is not only a fundamental part of living in a free and open society, but also – above all –, a basic need of every human being. In this vein, early modern constitutions equated freedom with happiness. More specifically, the Virginia Declaration of Rights linked “the natural right to pursuit of happiness” to security, life, liberty and property [ 79 , 318]. Section  1 (‘Equality and rights of men’) of Art. I (‘Bill of Rights’) reads as follows:

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety [ 79 , 318].

George Mason’s expression “pursuit of happiness” highly influenced Thomas Jefferson when drafting the text of the American Declaration of Independence , whose Prologue reads:

The unanimous Declaration of the thirteen United States of America (…).

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”[ 33 ].

Some years later, the Declaration of the Rights of Man and the Citizen also referred to the connection between constitutions and happiness of all:

…in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all” [ 48 ].

The link between happiness and freedom was explicitly stated in some European constitutions. The French 1793 Constitution was preceded by the mentioned Declaration , Prologue of which stated the following:

“The French people, convinced that the forgetfulness of and contempt for the natural rights of man are the sole causes of the misfortunes of the world, have resolved to set forth these sacred and inalienable rights in a solemn declaration, in order that all citizens, being able constantly to compare the acts of the government with the aim of every social institution, may never permit themselves to be oppressed and degraded by tyranny, in order that the people may always have before their eyes the bases of their liberty and their happiness, the magistrate the guide to his duties, the legislator the object of his mission. Accordingly, in the presence of the Supreme Being, they proclaim the following declaration of the rights of man and citizen:

• The aim of society is the general welfare. Government is instituted to guarantee man the enjoyment of his natural and inalienable rights. (…)” [ 47 ].

Freedom of expression was amongst the first and most important fundamental rights in modern constitutions. The French 1791 Constitution, in its Title I (‘Fundamental Provisions guaranteed by the Constitution’), secured it among other natural and civil rights:

“Liberty to every man to come and go without being subject to arrest or detention, except according to the forms determined by the Constitution;

Liberty to every man to speak, write, print, and publish his opinions without having his writings subject to any censorship or inspection before their publication , and to worship as he pleases; (…)” [ 80 ].

Mill’s work On liberty regarded freedom of expression as one of the most fundamental freedoms [ 81 ]. He presented “perhaps the most famous liberal defense of free speech” [ 64 ]. In the first footnote of chapter II, he made the following strong statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered [ 42 , 81 ].

He argued that everyone should be allowed to give his/her opinion:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind [ 43 , 81 ].

For Mill, freedom of expression was necessary for the dignity of persons. The price of curtailing it to get “a sort of intellectual pacification” implied to sacrifice “the entire moral courage of the human mind” [ 51 , 81 ]. He thought that speech should be protected because it is the path that leads to truth: if we suppress an opinion, it may turn out to be true. To assume otherwise is to assume that we are infallible, which is not the case [ 1 – 15 , 15 – 28 , 30 – 60 , 69 – 74 , 76 – 79 , 81 , 81 – 102 ]. 8 In his view, “if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted.” Mill maintained that “free speech fosters authenticity, genius, creativity, individuality and human flourishing” [ 64 ].

Mill maintained that the big loser of censorship was not the one who was not allowed to express his/her opinion, but humanity in general and his/her society in particular:

Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it [ 41 , 42 , 90 ]. 9

Hence, the limitation on freedom of speech should be based upon “one very simple principle,” the so-called harm principle:

…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others [ 37 , 81 ].

As seen, freedom of expression was also among the four main freedoms in the famous Roosevelt speech in 1940, when America entered the Second World War.

Freedom of Expression as a Condition for Democracy

In the context of Western democracies, free speech became even more relevant, since each citizen should have his/her say and be allowed to contribute in shaping his/her political community. In authoritarian and totalitarian regimes, in both the past and the present, freedom of speech is radically curtailed, particularly the voice of those who do not agree with the political regime, its laws, as well as the public morality they reflect. As seen above, in democratic states, public morality is supposed to be the result of private moralities freely expressed by individuals. Citizens, by thinking and expressing their views, contribute to shaping public morality in their social and political community. Moreover – as we saw – in a real democracy, public morality is somehow permanently on the move because there is a constant flux between private moralities and public morality. Freedom of expression makes this flux possible. The necessary requirements are that citizens think for themselves and have the courage to express their views. Such requirements are not easy, but laws should promote and protect both things and, particularly, the freedom of expression. Otherwise, democratic societies suffer and individuals become “more vulnerable”. What do I mean by becoming “more vulnerable”?

The ability to reason and communicate your thoughts, views or feelings are two fundamental traits of human beings. The school of Salamanca (Francisco de Vitoria and Domingo de Soto, among others) defended Native Americans because of their humanity, by arguing that their dignity should be respected as such because of their ability to reason and communicate. Hence colonizers had the right to spread the Gospel (without implying the right to become the owners of natives’ land) because everybody has the right to communicate and express what they think. In other words, communication is a human need that derives from the inherent social dimension of the human being. Depriving someone from expressing what he/she thinks means to undermine him/her as human being or to treat him/her below his/her human dignity.

The connection between freedom of expression and human development was also explicitly stated by the ECtHR in  Handyside v. United Kingdom :

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man [ 5 ]. 10

The Threats of Freedom of Expression Today: Cancel Culture and Vulnerability

When the social environment and state laws do not allow individuals to express their own ideas because they are considered wrong or harmful to the whole society, to a vulnerable group of individuals o to someone in particular, two important things happen:

• The above-mentioned constant flux between private and public morality is broken, so some individuals or part of the society are not allowed to communicate or express their views, undermining two fundamental traits of democracy: plurality and inclusiveness;
• The common or inherent vulnerability of such individuals increases, among other reasons because, not being allowed to shape their own political community by expressing their views, they somehow become second-rate citizens.

The idea of vulnerability is then at the fore front of the exercise of freedom of expression [ 83 ]. Everybody agrees that the freedom of expression of vulnerable and marginalized people – including minorities – should be defended and even empowered [ 33 , 63 ]. 11 However, protecting and empowering vulnerable people by conditioning, restricting or punishing the free expression of ideas of those who do not belong to vulnerable groups, in a way not adequately justified and “proportionate to the legitimate aim pursued,” [ 33 , 63 ]. could cause the vulnerability of the majority for being deprived of expressing their views. Moreover, such disproportionate restrictions would not help to enhance a culture of respect and tolerance towards the most vulnerable or/and marginalized people.

Hate speech has its role, but sometimes it is disproportionately used as a tool to restrict the freedom of expression of a person belonging to a dominant majority group towards of a person belonging to a vulnerable group [ 38 , 51 , 83 ], 12 particularly when some of them are supported by powerful lobbies that exert a remarkable influence over some international organizations, some global companies, and most of the mass media and film industry (e.g. Hollywood).

Democratic states need to promote free and strong social environments in which the empowerment of the freedom of expression of vulnerable and marginalized groups does not bring along with it the vulnerability of the rest or, in other words, that the defense of minority rights is not done at the expense of curtailing or prohibiting the expression of the rest of the society. In this vein, a free and democratic society should be characterized by its capacity not only to allow the expression of private moralities that are against the public morality reflected in the enforceable current laws, but also to welcome dissenting opinions on controversial issues and the openness towards pluralism and diversity. This does not seem to be the prevailing cultural environment of Western democratic societies, in which many people are afraid of expressing their views; these are societies in which two languages are spoken, one in the private and the other in the public arena, in which political correctness dictates what should or should not be said, punishing with the social or civic death those who dare to think for themselves and express their thoughts. It is what has been called, as seen above, cancel culture.

Cancel culture leaves individuals who dare to express views that are regarded as heterodox in a state of vulnerability. Cancel culture consists precisely in taking away support for individuals, their careers, popularity and/or fame because something they expressed – by words or deeds – is considered unacceptable. “To be ‘cancelled’ is effectively to be boycotted, with the intent that the person will be ostracised and no longer benefit financially, personally or professionally from their elevated position” [ 66 ]. 13

One might think that this mainly affects public figures (Jimmy Carr, J.K Rowling, Chris Noth, Chrissy Teigen, etc.) [ 66 ], but it might also touch upon common people from different social and professional backgrounds, particularly in politics, public administration – particularly in the judiciary –, journalism, academia and in other cultural environments, in which experiences of surveillance, threats and harassment have already produced a chilling effect on the free exercise of expression [ 1 , 227–242, 228]. 14 In this regard, it has been shown how “[US] writers are not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result” [ 62 ]. In fact – as a PEN report points out –, the assumption that writers “are under surveillance is harming freedom of expression by prompting writers to self-censor their work in multiple ways, including: a) reluctance to write or speak about certain subjects; b) reluctance to pursue research about certain subjects; and c) reluctance to communicate with sources, or with friends abroad, for fear that they will endanger their counterparts by doing so.” [ 1 , 227–242, 228]. 15

In the European Commission’s first Rule of Law Report – and connected country chapters – published on 30 September 2020, “the concept of chilling effect was mentioned 20 times in relation to legal measures, political attacks, smear campaigns, abusive lawsuits and threats targeting journalists, civil society, judges and prosecutors” [ 33 , 94 , 103 ]. 16

Internet contributes to increase the perception of being under surveillance [ 33 , 94 , 103 ], 17 but also of being more easily exposed to harassment, bullying or to different kinds of exploitation, particularly those most vulnerable [ 53 ]. In fact, cancel culture might, in the online environment, be even more severe and have a global impact. The exercise of freedom of expression in the digital world might make people even more vulnerable, leaving – as a Report for the United Nations Commission on Human Rights asserted – their voices “ignored and consequently left out of any debate” [ 61 ]. 18

The connection between freedom of expression, internet and vulnerability is undeniable [ 55 , 56 ]. In this vein, the risk of being cancelled or excluded from debate when exerting freedom of expression in the digital world is high. Moreover, the dangers and threads that internet poses to vulnerable people have been detected and denounced by some European jurisdictions. In England, for example, a report of the Communications and Digital Committee, published on 22 July 2021 [ 99 ], warns how “vulnerable adults are often ignored in the debate around digital citizenship education.” In defining what a “vulnerable person” is, the report refers to “someone who is unable to look after themselves, protect themselves from harm or exploitation or are unable to report abuse.” 19 The report recognizes that “vulnerable person” covers a wide range of people, but does not emphasize that on the Internet everybody, to some extent, becomes more vulnerable (and not just “those with physical disabilities or illnesses, neurodiverse individuals, care leavers, people with mental health difficulties, those with addictions, and homeless people.”). In fact, many common people have suffered, on the Internet, “harassment, bullying, exposure to harmful content, sexual grooming, exploitation, encouragement of self-harm, and access to dangerous individuals or information.” 20 So there is indeed an urgent need to create a safe online experience: “an inclusive online environment is therefore especially important for vulnerable adults to ensure they can express their views freely online.” 21 It is true that online “[a]nonymity can allow individuals, including those in vulnerable positions, to express themselves more freely and to challenge orthodoxies,” but “it can also embolden people to abuse others,” 22 making them all the more vulnerable [ 91 , 159–173]. 23

Norway has also paid attention to the risk of exerting the freedom of expression on the Internet from the vulnerability´s perspective. In February 14, 2020, a Freedom of Expression Commission was appointed with the assignment to “consider measures to promote an open, informed public discourse, including: (…) [m]easures to promote wide participation in the public exchange of ideas. In this regard, the Commission should, for instance, problematise the distinction between offensive statements that are not protected by freedom of expression and statements that are protected but which may nonetheless be perceived as challenging because they lessen vulnerable groups’ real opportunities to express views freely and participation in democratic processes.” 24 A year later, the Norwegian Ministry of Foreign Affairs launched its international strategy for promoting freedom of speech in foreign and development policy [ 104 ]. The document recognizes that “freedom of expression and media freedom are under severe pressure” and that “[m]any countries, including a number of democratic countries, have introduced new restrictions that limit freedom of expression.” 25 And further on, it touches upon one of the most delicate issues:

Legislation and mechanisms that are intended to provide protection against harmful and illegal speech must be developed in a way that safeguards the most vulnerable groups but does not lead to disproportionate restrictions on freedom of expression and information.” 26

The document recommends a “Safe environment for freedom of expression,” and warns about “Online threats” as follows:

Freedom of expression means that all people have the right to express themselves freely in the public domain without fear of surveillance, censorship, discrimination, intimidation, or other forms of abuse. Many individuals and groups lack both the opportunity and a safe environment to be able to participate in the free exchange of views, and there is a particular need to protect their right to freedom of expression . 27

Fostering a safe environment for freedom of expression means to safeguard the free exchange of opinions of all people, above all the vulnerable, and particularly those who are excluded from debate for daring to challenge orthodoxies, those who are boycotted or ostracized, or suffering a kind of social and civic death for expressing their views.

Some scholars in the field of social sciences denounce that some social engineering of language has poisoned Western democracies. In their view, such engineering of language advocates “censorship to protect the rights of marginalised and vulnerable groups, while paradoxically censors the right to expression of thought and infringing on a basic right of freedom of speech” [ 68 , 175–201]. They argue that “political correctness is charged with giving carte blanche to the use of emotionally charged accusations (e.g., racist, sexist, homophobic) toward views that dissent from a supposed superior moralistic perspective. Political correctness ultimately complicates engagement between people who differ; rendering interactions and discourse shallow or uncomfortable” [ 68 , 85 : 443–445].

In addition to political correctness, another obstacle linked to vulnerability needs to be overcome to exert freedom of expression. Among US university students a peculiar kind of emotional vulnerability is growing: American undergraduates have become increasingly prone to a syndrome of “vindictive protectiveness”, whereby individuals attack anyone or anything that threatens their emotional wellbeing. Political correctness, and its various campus manifestations such as “safe spaces”, become a kind of pathology that not only harms the sufferer, but damages the capacity to argue and reason [ 45 ]. This tendency has been found in the US, very much in the terms Greg Lukianoff and Jonathan Haidt described in 2015 [ 22 ]. They argue that in the name of emotional well-being, college students are increasingly demanding protection from words and ideas they don’t like. In their view, this is disastrous for education—and mental health. In their view, “the very idea of helping people with anxiety disorders avoid the things they fear is misguided” [ 22 ]. 28 The same tendency can be seen in England and other European jurisdictions [ 8 , 12 , 14 , 58 , 60 , 74 , 75 , 77 , 81 , 90 – 102 , 105 ]. 29

People are becoming less tolerant towards dissenting opinions and views that are contrary to their own way of thinking or living, so they experience emotional distress and anxiety disorders. They feel comfortable in the digital world, in which everything is explained, seen, experienced and felt according to their own whims, and become unable to manage their feelings when differences and dissensions arise outside of their (digital) worlds. They take such dissenting opinions as a thread rather than a richness of social coexistence within plural and inclusive democracies. They overlook that “when people replace their need to defend themselves with a desire to learn, the possibilities for constructive cross-cultural interactions increase enormously” [ 82 ].

Postmodern society does not accept limitations, its individuals do not cope with them either, so any dissenting view is perceived as a threat, not as opportunity to learn, to improve or enrich oneself:

Learning requires people to acknowledge their limitations and to suspend their need to be right or to prove their competence. In so doing, they make themselves vulnerable to others’ judgments so that they can perform their jobs more effectively [ 82 ].

Here the expression vulnerable to others’ judgment is used in the sense of being open to criticism or to improvement. This is only possible in a social environment of safety, whereby that “people are well-intentioned and (…) that well-intentioned actions will not lead to punishment” is assumed. In a few words, “people (…) need to feel safe” [ 82 ]. 30 But this is not a trait of our postmodern society, in which self-righteousness unfortunately leads to “to divisive conflict, alienation, and ultimately, poor performance” [ 82 ]. 31

The Criminalization of Dissent: Recent Examples from Spanish Law

Some European governments seem to go further by making criminal laws that prosecute dissenters. Spain has been taking some steps in that direction as a means of guaranteeing national security or defending other rights connected to a broad exercise of sexual freedom. I will briefly present three examples.

In 2015, Article 578 of the Spanish criminal code was broadened in response to the Paris attacks and the perceived threat of international terrorism, although the vast majority of the cases brought under the law related to disbanded or inactive domestic armed groups, namely ETA and GRAPO. An EU Directive on combating terrorism, which included “glorification” as an example of expression that may be criminalized and was implemented across Europe at the end of 2018, led the Spanish government to vaguely define offences such as “glorification of terrorism” and “humiliation” of its victims, seriously endangering the right to freedom of expression. According to Amnesty International, an exponential increase in the number of people falling foul of a draconian law banning the “glorification of terrorism” or “humiliating victims of terrorism” seems to be part of a sustained attack on freedom of expression in Spain [ 34 ]. In this vein, it has been stated that “Spain is emblematic of a disturbing trend which has seen states across Europe unduly restricting expression on the pretext of national security and stripping away rights under the guise of defending them.” 32

Other recent criminal laws restrict the freedom of expression when it is considered to attack the exercise of sexual freedom. The Spanish government took the initiative of drafting a criminal provision, that was issued in April this year and came into force immediately in the Criminal code [ 93 ], whereby it is labeled as harassment the fact of being close to hospitals where abortions are performed in order to pray, provide information and offer assistance to those women who approach these hospitals seeking medical support to interrupt their pregnancy. The new provision reads as follows:

• Whoever, in order to hinder the exercise of the right to voluntary interruption of pregnancy, harasses a woman through annoying, offensive, intimidating or coercive acts that undermine her freedom, will be punished with a prison sentence of three months to one year or work for the benefit of the community from thirty-one to eighty days.
• The same penalties will be imposed on whoever, in the manner described in the previous section, harasses health workers in their professional practice or public function and the medical or managerial staff of centers authorized to interrupt pregnancy with the aim of hindering the exercise of his profession or position.
• Taking into account the seriousness, the personal circumstances of the author and the concurrent in the realization of the act, the court may also impose the prohibition to go to certain places for a period of six months to three years.
• The penalties provided for in this article will be imposed without prejudice to those that may correspond to the crimes in which the acts of harassment took place.
• In the prosecution of the facts described in this article, the complaint of the aggrieved person or his legal representation will not be necessary.” 33

One might wonder if there was a need for such provision, particularly when Art. 172. 1 perfectly defined the criminal offense of harassment, whereby those who approached women in an unrespectful manner that constitutes coercion or harassment could perfectly be punished under such provision:

Whoever, without being legitimately authorized, violently prevents another from doing what the law does not prohibit, or compels him to do what he does not want, whether fair or unfair, shall be punished with a sentence of imprisonment from six months to three years or with a fine of 12 to 24 months, depending on the severity of the coercion or the means used. 34

It seems clear that if the Criminal code already punished anyone who “violently prevents another from doing what the law does not prohibit, or compels him to do what he does not want, whether fair or unfair,” there was not much need for an additional provision, unless the purpose was precisely to restrict the expression of those who dissent from the current law and devote themselves to pray, inform and give support to those women who freely want to receive it. In short, if the behavior of those who pray before the abortion clinics has sufficient intensity to violate the will of others, their actions are already included and punished by criminal law (art. 172.1); however, if their action is not violent (neither physical, nor intimidating, nor with force on things), then we are not facing harassment or coercion. What's more: such a behavior falls within the scope of freedom of expression (art. 16 Spanish Constitution, SC), freedom of assembly (art. 21 SC) and – more in favor of those who pray – their religious freedom and conscience (art. 20 SC) [ 32 ].

One might argue that the presence of these people in the nearby of abortion clinics might be annoying, even when they do not behave violently. Yes, that is true. However, is it legitimate to restrict freedom of expression because of such annoyance? Is not praying, informing or expressing disagreement or criticism part of a plural democracy? Can a criminal-law provision consider prayer as an annoying, offensive, intimidating or coercive act?

The defense of some rights might restrict the exercise of free speech indeed, as stated in the Spanish Constitution. 35 Besides, the Constitutional Court has clearly established that, in the event of a conflict of rights, the principles of weighting, reasonableness and proportionality must be applied [ 106 ], and that, in the in the specific case of freedom of expression, the limits are both in the form (no doubt injurious or outrageous phrases and expressions would fit without relation to the ideas or opinions that are exposed and that are unnecessary to expose them), and in the content (that is, the public relevance and the veracity of what is expressed). Freedom of expression is not an absolute right [ 55 , 152–154], but it cannot be restricted on grounds of annoyance, as the Constitutional Court stated it recently:

Freedom of expression includes, along with the mere expression of value judgments, criticism of the conduct of others, even when it is bland and may annoy, disturb or upset the person it addresses, as pluralism requires it, tolerance and the spirit of openness, without which there is no democratic society . In the broad framework that is granted to freedom of expression, according to our doctrine, ‘those manifestations that, although they affect the honor of others, are revealed as necessary for the exhibition of ideas or opinions of public interest are protected [ 107 ].

In this line of thought, the Administrative Court of Frankfurt am Main recently ruled (16 December 2021) that an order of the public authority that limited when and where the members of a prayer group could congregate contravened the right to freedom of assembly from article 8 of the German Basic Law.

The third example touches upon a ‘Preliminary Bill for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people’[ 35 ], that was approved by the Council of Ministers (29 June 2021) in order to follow its established procedure, a draft that would soon be presented and passed in parliament.

A recent report on the this Bill by the General Council of the Judiciary (‘Consejo General del Poder Judicial’) argues that the repeated use of the legislative technique (of resorting to comprehensive and transversal regulations), in addition to overlapping with other current laws, leads to an “excessive atomization of the legal system” by providing certain groups with a privileged regime of protection, differing from the regime applicable to the rest of the citizens, “with notable detriment to the right to equality and the principle of legal certainty.” 36 This lack of legal certainty affects the exercise of freedom of speech about LGTBI issues, particularly when this law contains a disciplinary system composed of administrative fines for those who, in expressing their views, might infringe LGTBI rights. 37 In this vein, Art. 76.2 a) considers as a minor infringement “the use or emission of degrading expressions against people because of their sexual orientation and identity.” Will any dissenting opinion about the goodness of LBTBI style of life be considered ‘degrading’? Will this law protect those who express their dissenting thought about this issue? Or will it rather treat those dissenters as discriminators and hence threaten them with administrative sanctions, if they dare to say or write anything that might be considered as an annoyance or as discriminatory?[ 100 ]. 38 Such laws that seek to enhance the positive discrimination might not distinguish between the free expression of ideas and the degradation of someone in particular. This is so because any dissenting opinion is erroneously considered as degrading for that particular group of people, so freedom of expression is substantially restricted and threatened by administrative and criminal sanctions.

Who are here the most vulnerable? Those who are being protected by laws like this, or those who will not be able to express what they think (inasmuch as they have a dissenting opinion that cannot be expressed because it is erroneously regarded as a threat towards those at discriminatory risk)? The reader might think about it and judge for him/herself, but perhaps may agree with me that illegitimate restriction of free speech necessarily produces vulnerability of those who are not allowed to express their thought, causing a discrimination that touches upon a necessary requirement of human dignity and a fundamental principle of democracy [ 2 , 7 , 25 , 27 , 30 – 50 , 84 ].

Concluding Remarks

Suppose people demand protection from words and ideas they do not like, perhaps because they are not politically correct or because they are against the public morality of a particular moment, and laws do not allow the expression of such views that might cause emotional distress to some people. In that case, we have two different kinds of vulnerability, namely that of those prone to be emotionally distressed and that of those who are not allowed to express those views that are not orthodox or might produce distress to some people. In the end, what happens is that those who are not allowed to express their views, because of the social and legal consequences, become second-rate citizens. They also become more vulnerable (because they are not allowed to cause emotional distress with their opinions, while they cannot claim themselves distressed by the opinions of others), and, more importantly, democracy becomes weaker, less plural, and less inclusive.

Democracies need free and mature societies composed of individuals able to listen to different views about human life, human dignity, and about how to live in society [ 73 ]. Otherwise, “[i]t becomes necessary then to question the fragility of intellectual freedom in established democracies, and their vulnerability to censorship. Without a firmly-entrenched culture of intellectual freedom, how can an established democracy claim the moral high ground when it tries to convince an authoritarian state about the perils of censorship?”[ 32 , 37 ].

Universities should take the lead in creating an environment of intellectual freedom, enhancing an open debate, and broadening the minds of their students, but most of them do not seem to be on the right path. Unfortunately, this is the general tendency of Western universities, not only in the United States but in the Commonwealth [ 92 , 108 ], Europe, and America. In many universities, expressing a different opinion against some highly ideologically charged issues such as abortion, gender, feminism, marriage, and family is viewed as an intolerable act that deserves to be immediately punished –in the social, professional, and legal domains–, affecting the whole university community, including lecturers, 39 officers, 40 and students. 41

Paradoxically, it is intolerance for the sake of ‘tolerance,’ totalitarianism for the sake of ‘free democracy,’ exclusion for the sake of ‘inclusivism,’ uniformity for the sake of ‘equality,’ pensée unique for the sake of ‘diversity’ and restriction of free speech for the sake of ‘pluralism.’ I can only doubt the consistency and coherence of such ‘tolerance,’ ‘free democracy,’ ‘inclusivism,’ ‘equality,’ ‘diversity’ and ‘pluralism’ when, in the name of such notions, a single-value system is imposed to the whole society and those who dissent are treated as second-class citizens, leaving them vulnerable and also without legal protection.

Open Access funding provided thanks to the CRUE-CSIC agreement with Springer Nature.

1 Article 20 of the current Spanish Constitution enshrines several rights, including the right to “freely express and disseminate thoughts, ideas and opinions by word, writing or any other means of reproduction” (Art. 20.1a). Similar provisions can be found in most modern Western constitutions. The origin of freedom of speech enshrined in the Spanish precept does not differ much from other Western jurisdictions.

2 Alfonso Guerra, the vice-president of Spain from 1982 to 1991, was well aware of this when, after the PSOE won the elections on 28 th October 1982, declared that “We are going to develop Spain into such a country that not even the mother who bore it will recognize.” I do not know to what extent it could be accepted that this was the case when the party mentioned above ceased to govern in 1996. However, it is undeniable that the values on which Spanish society was grounded in 1982 had little to do with those four decades later. This may be more or less liked, but it is a fact that today’s society is not the same, nor is it governed by the same public ethics.

3 Modern libertarianism gained a significant recognition in the US academia with Robert Nozick, Anarchy, State, and Utopia 76, which was written as a response to John Rawls’ famous book entitled A Theory of Justice 81. Some years later, Rawls notably revised his idea on public reason as can been seen in his article “The Idea of Public Reason Revisited” 82: 765–807.

4 Such a liberal and utilitarian conception of morality and law whose foundation is the mere willingness (rather than reasonableness), has also consequences in other fields of law, such as in countering terrorism, as shown by Aniceto Masferrer & Pedro Talavera 61: 44–55.

5 As it was argued by the Committee on Homosexual Offences and Prostitution, 18. On the matter, see Eustace Chesser, 16, as well as debate between P. Devlin and H.L.A. Hart; on that controversy, see Patrick Devlin, 25, 26; Herbert L.A. Hart 43.

6 In a quite different way, Immanuel Kant was also perfectionist, as some of his works reflect 43, 90; see also Kadri Simm 91: 54-62; see also John Finnis 31: 1-26, “whose main thesis could be summarized as follows: “In any sound theory of natural law, the authority of government is explained and justified as an authority limited by positive law (…), by the moral principles and norms of justice which apply to all human action (…), and by the common good of political communities-a common good which I shall argue he is inherently instrumental and therefore limited”.

7 The expression ‘deliberative democracy’ was coined by Joseph Bessette 12, 13: 102–116.

8 Stanley Ingber 45: 1-91: “John Stuart Mill thus argued that repression may interfere with the market's ability to seek truth: first, if the censored opinion contains truth, its silencing will lessen the chance of our discovering that truth; secondly, if the conflicting opinions each contain part of the truth, the clash between them is the only method of discovering the contribution of each toward the whole of the truth; finally, even if the censored view is wholly false and the upheld opinion wholly true, challenging the accepted opinion must be allowed if people are to hold that accepted view as something other than dogma and prejudice; if they do not, its meaning will be lost or enfeebled.”.

9 See also Simon Clarke 17: the author argues that “…democracy is served not only by the abilities that broad freedom of speech helps develop but also by the self-development that would occur under freedom more generally. The connection between democracy and self-development was explored by Mill in chapter 3 of  Considerations on Representative Government . There he argued that democracy is more likely, compared to other forms of government, to result in the development of intellectual, practical, and moral abilities. Intellectual abilities involving abstract speculation would be developed by people thinking about possible solutions to national problems, with the prospect of putting into effect. Practical abilities, the abilities involved in applying abstract speculations to practical matters, would be developed by the participation in politics that democracy encourages. Moral abilities, involving concern for the interests of others, are furthered by having the ability to make decisions which will affect those interests. In a democracy, people have to think about how political decisions will affect everyone.”.

10 “The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man . Subject to paragraph 2 of Article 10 (art. 10–2), it is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" 41. This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued”; italics are mine; in a similar way, it was recently stated that “[f]reedom of expression is both an individual human right and a prerequisite for a functioning democracy” ( Mandate for the Freedom of Expression Commission , 14 February 2020, based on article 100 of the Constitution of the Kingdom of Norway, the Commission is to review the social, technological, legal and economic frameworks for freedom of expression in today's society).

11 “The menace of hate speech is mainly affecting minorities, as approximately 70% of victims of hate speech or hate crimes belong to minorities. However, the brutality and violence of hate speech, stemming from racism, prejudice, scapegoating and incitement to violence in social media is often ignored or normalized, with victims remaining unnamed. This is a critical issue to tackle, as freedom of expression, one of the main pillars of a free, stable and democratic society, is constantly stressed and its restrictions tested. Following these premises, the dark side of social media cannot be ignored anymore, as it has become a vehicle for dangerous forms of hate speech, conspiracy theories, misinformation, disinformation, racism and scapegoating of minorities to conjure and spread” 105:4.

12 “It is usual for a hate speech of a person belonging to a dominant majority group in the society to be more alarming than a hate speech of a person belonging to a vulnerable and discriminated minority. However, hate speech can be targeted by a minority towards another minority or vulnerable group in the society. For instance, hate speech of a person belonging to a discriminated ethnic minority targeted towards a gay community or LGBT population, expression of sexism, chauvinism or misogyny” 11: 31–32.

13 “Most of the time, people are “cancelled” because they are a public figure with influence over a huge audience and what they’ve done or said is alleged to have caused harm to a particular person, group of people or community. For example, many of those who have been “cancelled” have received this public backlash following accusations of violent, sexist, racist, homophobic or transphobic activities or comments” 108.

14 “The concept chilling effect is central to my approach, since this effect has demonstrated its effectiveness in stimulating self-censorship and thus less transparency in any given public sphere, and since the chilling effect may have severe repercussions vis-à-vis this particularly important strand of journalism. Surveillance and the threat of being surveilled (and thus perhaps also persecuted) are in turn important components of the chilling effect…” 28: 227–242, 228.

15 “The concept chilling effect is central to my approach, since this effect has demonstrated its effectiveness in stimulating self-censorship and thus less transparency in any given public sphere, and since the chilling effect may have severe repercussions vis-à-vis this particularly important strand of journalism. Surveillance and the threat of being surveilled (and thus perhaps also persecuted) are in turn important components of the chilling effect…” 28: 227–242, 228.

16 As can be seen, the chilling effect is mentioned in 12 country chapters: Bulgaria; Germany; Estonia; Ireland; France; Croatia; Hungary; Poland; Portugal; Romania; Slovenia; Finland. The Spanish chapter makes no reference about the chilling effect, but states that “in recent years instances of hostility towards journalists have been registered, including situations where journalists were the targets of threats or violence” 100.

17 “I feel that increased government surveillance has had a chilling effect on my research, most of which I do on the Internet. This includes research on issues such as the drug wars and mass incarceration, which people don’t think about as much as they think about foreign terrorism, but is just as pertinent.” 79: 4, 100.

18 The Report for the United Nations Commission on Human Rights denounced that “The poverty and social marginalization endured by large sectors of society in the Americas affect the freedom of expression of the hemisphere’s citizens, in that their voices are ignored and consequently left out of any debate” 102.

19 “Vulnerable adults are often ignored in the debate around digital citizenship education. A vulnerable person is someone who is unable to look after themselves, protect themselves from harm or exploitation or are unable to report abuse. This covers a wide range of people, such as those of with physical disabilities or illnesses, neurodiverse individuals, care leavers, people with mental health difficulties, those with addictions, and homeless people” 84.

20 “This exclusion from debate is despite the additional risks that the internet poses to vulnerable people: there is significant scope for harassment, bullying, exposure to harmful content, sexual grooming, exploitation, encouragement of self-harm, and access to dangerous individuals or information” 84.

21 “Creating an inclusive online environment is therefore especially important for vulnerable adults to ensure they can express their views freely online. The Government has identified a lack of support for vulnerable adults as a barrier to improving their literacy” 84.

22 Summary of conclusions and recommendations, n. 24: “Anonymity can allow individuals, including those in vulnerable positions, to express themselves more freely and to challenge orthodoxies. This is crucial. However, it can also embolden people to abuse others.”.

23 Human vulnerability for not being allowed to express one´s views do not affect children, although laws protecting them might justify censorship or limit the scope of the free exercise of expression; on this matter, see Elisabeth Staksrud, Kjartan Olafsson & Tijana Milosevic 73: 159–173.

24 Mandate for the Freedom of Expression Commission , 14 February 2020, based on article 100 of the Constitution of the Kingdom of Norway, the Commission is to review the social, technological, legal and economic frameworks for freedom of expression in today's society.

25 Freedom of expression under pressure : “In many countries, freedom of expression and media freedom are under severe pressure. The COVID-19 pandemic has exacerbated a negative trend in which democratic values and human rights are increasingly challenged, and autocratisation is accelerating. Many countries, including a number of democratic countries, have introduced new restrictions that limit freedom of expression. Journalists and the media are being prevented from doing their job in various ways, and human rights defenders and other critical voices are being denied access to information and silenced. Government-sanctioned censorship of the internet and media channels is a growing problem. It is essential to strengthen freedom of expression and freedom of the press in order to restore people’s trust in public institutions and in each other, and to promote support for social development based on respect for human rights and democratic values” 101.

26 Human rights in the digital space ; and it goes on as follows: “A strong, diversified and independent media sector that can provide critical, fact-based journalism, combined with a high level of public media and information literacy, is also vital for protecting freedom of expression and information 101.

27 Safe environment for freedom of expression. 4.1 Online threats; italics are mine; and goes on: “This includes human rights defenders and civil society organisations that play an important role in giving vulnerable groups a voice, for example, indigenous peoples and human rights defenders working to promote indigenous peoples’ rights to land and natural resources” 101.

But if you want to help her return to normalcy, you should take your cues from Ivan Pavlov and guide her through a process known as exposure therapy. You might start by asking the woman to merely look at an elevator from a distance—standing in a building lobby, perhaps—until her apprehension begins to subside. If nothing bad happens while she’s standing in the lobby—if the fear is not “reinforced”—then she will begin to learn a new association: elevators are not dangerous. (This reduction in fear during exposure is called habituation.) Then, on subsequent days, you might ask her to get closer, and on later days to push the call button, and eventually to step in and go up one floor. This is how the amygdala can get rewired again to associate a previously feared situation with safety or normalcy.”.

29 The author explains how the UK government’s attempt to “prevent” terrorism and extremism in the university sector can be rightly seen as an intolerant threat to academic freedom, replicating many of the discussions already taking place in universities about the need to protect “vulnerable” students from offensive and dangerous ideas. He argues that, while the threat to academic freedom used to come from outside the university, from pressures exerted from governments, from religious institutions who oversaw a particular institution or from the demands of business, today there is a more dangerous threat to academic freedom that comes from within universities, a triumvirate of a relativistic academic culture, a new body of identity-based student activists and a therapeutically oriented university management, all three of which have helped to construct universities as safe spaces for the newly conceptualized “vulnerable student” 98: 71–92.

30 “People in the organization need to feel that, in questioning themselves or making themselves vulnerable, they will not be judged or punished. In other words, they need to feel safe. Leaders create safety by publicly stating their assumption that people are well-intentioned and by overtly ensuring that well-intentioned actions will not lead to punishment. They resist the judgmental tone that diversity discussions so often acquire, by making it clear that mistakes will not impugn anyone’s moral character. Being candid themselves, they also encourage others to be candid. Perhaps most important, such leaders acknowledge their own fallibility in cross-cultural interactions. When they describe publicly their own learning, they legitimate discussions of identity-related experiences, giving permission to employees to provide and solicit feedback, air conflicts, and learn from their missteps” 29.

31 “The five principles we have identified are difficult to enact. They entail taking risks and opening up when we feel most vulnerable and in need of self-protection. When others accuse us of holding prejudicial attitudes, we should interrogate ourselves; when we believe others are treating us unfairly, we should reach out to understand their actions. These prescriptions do not sell easily; self-righteousness feels more satisfying. But self-righteousness can also lead to divisive conflict, alienation, and ultimately, poor performance” 29.

32 Eda Seyhan, Amnesty International and Esteban Beltrán, Director of Amnesty International Spain pointed out as follows: “Sending rappers to jail for song lyrics and outlawing political satire demonstrates how narrow the boundaries of acceptable online speech have become in Spain. (…). People should not face criminal prosecution simply for saying, tweeting or singing something that might be distasteful or shocking. Spain’s broad and vaguely-worded law is resulting in the silencing of free speech and the crushing of artistic expression.

33 Art. 172 quarter, Spanish Criminal Code.

34 Art. 172.1 Spanish Criminal Code.

35 Art. 20.4 Spanish Constitution: “(…) especially, in the right to honor, privacy, one's own image and the protection of youth and childhood”.

36 For a resumé of the Report, see https://www.poderjudicial.es/cgpj/es/Poder-Judicial/En-Portada/-El-Pleno-del-CGPJ-estudiara-el-dia-20-la-propuesta-de-informe-al-anteproyecto-de-Ley-para-la-igualdad-real-y-efectiva-de-las-personas-trans-y-para-la-garantia-de-los-derechos-de-las-personas-LGTBI – .

37 Art. 76.1: “Infringements regarding equal treatment and non-discrimination based on orientation and sexual identity, gender expression or sexual characteristics are classified as minor, severe and very serious, in view of the nature of the unfulfilled obligation and the entity of the right affected.”.

38 Guadalupe Sánchez argues that the Bill establishes “a disproportionate sanctioning system – fines of up to 150,000 euros –, which seeks to administratively limit freedom of expression and condition legal and scientific debate, so that the premises from which the law is based become dogmas of faith unquestionable. That is what has always been called censorship, but this time under the noble alibi of the fight against discrimination. In the near future, writing and publishing articles like this one will be worthy of a sanction if the collectives and trade unions of the day (to whom the preliminary draft confers legitimacy for the exercise of judicial actions in the civil, contentious-administrative and social spheres), consider that contain expressions that can be considered humiliating” 85.

39 There is a countless number of cases, being many of them reported in internet; see, for example, https://nypost.com/2022/04/30/professors-on-how-they-were-canceled-why-they-fought-back/ , https://www.nas.org/blogs/article/tracking-cancel-culture-in-higher-education , and https://www.dailysignal.com/2022/01/03/8-college-professors-canceled-by-left/ .

40 In the last few months, for example, the Chancellor of the University of Valencia dismissed both Amparo Mañés from her office as Director of the Equality Unit, for her opinions on Queer theory and feminism (see, for example, https://www.elespanol.com/espana/comunidad-valenciana/20220412/universidad-valencia-igualdad-decir-mujer-hembra-humana/664433625_0.html ), and Ferran Suay, Director of Languages and Linguistic Policy, for his “unacceptable and sexist” comments (see https://www.abc.es/espana/comunidad-valenciana/abci-universitat-valencia-cesa-director-politica-linguistica-comentarios-machistas-redes-sociales-202206091800_noticia.html ).

41 Recently, on June 27, 2022, Christian Fernando Cortés Pérez, an outstanding student –with 99.9 out 100 in his GPA– who gave the commencement address in the Psychology graduation ceremony at the Universidad Autónoma de Baja California (in Ensenada, Baja California, México), is going through a brutal bullying by a lgbtqia + group that wrote a letter to the chancellor asking to deprive him from his university degree and disqualifying him to work as a psychologist for his disrespectful views. Cortés Pérez had just resorted to science to argue for the need to protect the right to life and dissented from the Queer theory that ignores the evidence of biology and natural sciences (for a description of the case, see https://youtu.be/pnGeMP7e3KA ).

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Telo de Abreu v. Portugal

Closed Expands Expression

• Key details

Key Details

• Mode of Expression Electronic / Internet-based Communication, Non-verbal Expression
• Date of Decision June 7, 2022
• Outcome Violation of a Rule of International Law, ECtHR, Article 10 Violation
• Case Number 42713/15
• Region & Country Portugal, Europe and Central Asia
• Judicial Body European Court of Human Rights (ECtHR)
• Type of Law International/Regional Human Rights Law
• Themes Artistic Expression, Defamation / Reputation, Political Expression
• Tags Satire/Parody, gender-based violence

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Case Analysis

Case summary and outcome.

The European Court of Human Rights (ECtHR) found that Portugal violated Patricio Monteiro Telo de Abreu’s freedom of expression, as enshrined in Article 10 of the European Convention on Human Rights, by convicting Telo de Abreu for reposting online three political cartoons. Telo de Abreu was convicted of defamation, by national Portuguese courts, for reposting caricatures on his personal blog that depicted a municipal councilor as a pig wearing sexually suggestive clothing. The ECtHR reversed the decision, reasoning that the Portuguese courts did not strike the right balance between freedom of expression and the right to honor and reputation. The Court concluded that political satire constitutes important democratic speech and that it should be permitted unless the government can show that the restriction or interference with freedom of expression is necessary in a democratic society.

Patricio Monteiro Telo de Abreu, is a Portuguese national and former Elvas municipal assembly representative. In 2008, Telo de Abreu reposted three political cartoons on his personal blog that depicted the mayor of Elvas as a donkey, the municipal councilor as a pig wearing sexually suggestive clothing, and the rest of the mayor’s political party as pigs. Next to each post, Telo de Abreu commended the artist’s cleverness. Telo de Abreu’s removed the posts from his blog upon learning about the criminal lawsuit brought against him by Mrs. E.G., the mayor’s  municipal councilor and close political advisor who was also depicted in the impugned caricatures.

Mrs. E.G. filed a complaint for aggravated defamation against Telo de Abreu and several other defendants before the Elvas Tribunal. She argued that Telo de Abreu disseminated political cartoons of a defamatory nature, attacking her reputation. In particular, Mrs. E.G. alleged that the cartoons depicted her as a promiscuous woman and suggested that she was engaged in an intimate relationship with the mayor.

Telo de Abreu was charged with aggravated defamation. Article 180 §1 of Portugal’s penal code criminalizes disseminating information that attacks an individual’s honor or reputation. This infraction is punishable by imprisonment or a fine. Moreover, Articles 183 and 184 of the same penal code provide for the possibility of increased damages if, among other things, an individual posts information in a medium that facilitates transmission.

On May 16, 2009, the Elvas Tribunal convicted Telo de Abreu on aggravated defamation charges and ordered him to pay a €1,800 fine and €2,500 in damages jointly with the other defendants. The court found that the political cartoon attacked Mrs. E.G.’s reputation and that Telo de Abreu, as a member of the opposing political party, disseminated the litigious speech to injure her. On February 26, 2015, the Evora Court of Appeals upheld the lower court’s decision. The Court of Appeals noted that neither the right to freedom of expression nor personal privacy are absolute. The court found that a cartoon depicting Mrs. E.G. in a sexual manner—and suggesting she had an intimate relationship with the mayor—surpassed the limits of free speech. Telo de Abreu filed an application with the ECtHR on August 24, 2015.

Decision Overview

Judge Grozev delivered the judgment for the European Court of Human Rights. The main issue before the Court was whether Portugal infringed on Telo de Abreu’s freedom of expression by convicting him of aggravated defamation for circulating a political cartoon in which a political advisor to a politician was depicted as a pig wearing sexually suggestive clothing. In particular, the ECtHR examined whether the Portuguese courts struck the proper balance between Telo de Abreu’s right to freedom of expression and Mrs. E.G.’s right to honor, reputation, and private life.

Telo de Abreu argued that the ECtHR should reverse the Portuguese courts’ decisions because the political cartoon jokingly satirized the government for being expensive and corrupt. Given this interpretation, the Portuguese government unduly restricted Telo de Abreu’s freedom of expression by preventing him from lawfully criticizing the municipal government. Telo de Abreu was adamant that the cartoon he reposted on his blog had no sexual connotation and that his desire to spread the satire was motivated by an opinion article criticizing the mayor that was published in 2006. Telo de Abreu further alleged that his criticism of the municipal political regime was the result of the views he held as a private citizen as much as a political opponent.

Portugal argued that the ECtHR should affirm its courts’ decisions. The government asserted that it was in the public interest to convict Telo de Abreu because the political cartoon depicted Mrs. E.G. as a prostitute and attacked her personal life. In this way, the political cartoon crossed a line from political satire to invasive personal attacks. The government also argued that the cartoon disseminated harmful stereotypes about women and therefore escaped the scope of protected speech under Article 10 of the European Convention on Human Rights (ECHR).

Relying on its own case law, the ECtHR explained that for a restriction to be deemed necessary in a democratic society, the government must show an a pressing social need (Bédat v Switzerland) . Moreover, the Court opined that the government must prove that its restriction on expression is proportionate to a legitimate public aim. ECtHR case law recognizes that freedom of expression is extremely important in politics and that politicians must have a high tolerance for criticism because of their notoriety (Magyar Jeti Zrt v Hongrie). The Court added that any exceptions to freedom of expression regarding political questions must receive a narrow interpretation.

It further pointed out that while the right to one’s reputation is protected by Article 8 of the Convention, for this provision to intervene in an attack against personal reputation, it must reach a certain level of severity and be meant to harm one’s personal exercise of their right to private life. These conditions apply to both social and professional reputation, and benefit from a particular emphasis in the professional field. The Court added that since satire—an art form communicating a social commentary through exaggeration and deformation of reality—contributes to public debate, courts must examine any interference with an artist’s right to use satire with particular care (Vereinigung Bildender Künstler v Austria, Leroy v France, Alves da Silva v Portugal, Tuşalp v Turkey, Grebneva and Alisimchik v Russia, and Kaboğlu and Oran v Turkey) .

The ECtHR adopted a narrower view on a politician’s right to the respect of their private life when balancing this right with another’s freedom of expression, interpreting freedom of expression in the context of public figures availing themselves to public scrutiny. The Court, following Magyar Jeti Zrt v Hungary , argued that “[t]he limits of permissible criticism are wider for a political party or a public figure than for a private individual [since] unlike the latter, the former inevitably and consciously expose themselves to close scrutiny of their actions by both journalists and the general public and must consequently show greater tolerance.” [para. 36]

The ECtHR highlighted that Article 8 and Article 10 rights a priori should be interpreted with equal respect, adding that the relevant criteria to be taken into consideration, when weighing these rights, are whether the contested expression contributes “to a debate of general interest, the notoriety of the person whose right to reputation is at stake […] the previous behavior of the person alleging a violation, the content, form and repercussions of the publication, as well as, if applicable, the circumstances of the publication as well as the circumstances in which any litigious photographs were taken.” [para. 37]

As a result, the Court said that satirical comments on a politician’s personal life must reach a high level of gravity and cause actual professional harm to justify restricting freedom of expression. The ECtHR found that Portugal did not demonstrate that this threshold was met. In its reading of the cartoon, the ECtHR did not think the artists suggested that Mrs. E.G. was engaged in an intimate relationship with the mayor. Moreover, the entire piece, taken together, clearly criticizes the Elvas government and the mayor’s political party, not Mrs. E.G. This reading of the cartoon, compounded with the fact that Telo de Abreu merely reposted the art and then deleted it from his blog after the criminal proceedings commenced, led the ECtHR to believe Telo de Abreu’s punishment was manifestly disproportionate in comparison to his acts, especially since Portuguese national law provides a specific remedy for damages to honor and reputation (Amorim Giestas and Jesus Costa Bordalo v Portugal) . The ECtHR also added that harsh punishments, like the one in this case, could deter expression that uses satire to comment on politics or society (Alves da Silva v Portugal) .

Thus, the ECtHR reversed the Portuguese courts’ decisions and granted Telo de Abreu €3,466 in material damages and €1,806 in legal fees. Telo de Abreu also asked the Court for emotional damages, but the court denied this request because the applicant did not specify the amount of moral damages he sought.

Concurring opinions

Judges Motoc, Kucsko-Stadlmayer, and Schukking authored concurring opinions. Each judge agreed with the Court that Portugal unlawfully restricted Telo de Abreu’s freedom of expression. However, concerned with the stereotypes portrayed in the cartoons, especially with respect to Mrs. E.G., these judges wrote separately to highlight the increasing violence against women in politics.

In her opinion, Judge Motoc started by defining violence against women in politics as any type of sexist action or threat causing physical, sexual, psychological, economic, or symbolic prejudice or suffering to women—preventing them from fully taking part in public life or exercising any rights relating to politics. Judge Motoc then went on to discuss the implications of violence against women in politics, concluding that this phenomenon, as a whole, represents a violation of women’s fundamental and political rights and that the Telo de Abreu case was an example of violence against women in politics. Judge Motoc concluded her analysis by stating that the Court must be ready to strive for the right balance when considering cases involving violence against women in politics.

As for Judges Kucsko-Stadlmayer and Schukking, their standalone opinion concurred with the majority opinion, emphasizing the Court’s finding that decontextualizing speech that takes place in a political context is contrary to the notion of proportionality discussed by the majority. Courts must therefore take into account the political context in which speech takes place when assessing the free speech implications of recognizing and enforcing competing rights. These Judges concluded that even though national courts had erred in granting and upholding Telo de Abreu’s criminal conviction, they were right to underline sexist representations of women in politics in their appreciation of proportionality. Kucsko-Stadlmayer and Schukking concluded their analysis by stating that “even satire must comply with certain limitations,” while highlighting that the present case’s positive aspect is that national jurisdictions recognized that Mrs. E.G.’s reputation as a woman in politics required particular protection under Article 8.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This decision expands freedom of expression. Relying on the fundamental relationship between democracy and political criticism, the ECtHR held that political satire must reach a high bar before it can be found to defame a politician. The ECtHR noted that the importance of the expression of dissident points of view in a democratic society justifies a broader interpretation of freedom of speech as it applies to speech of a political nature. The ECtHR was liberal in its assessment of the permissibility of political satire and insisted that the infringement of Telo de Abreu’s freedom of expression was not “necessary in a democratic society.” The ECtHR’s analysis was framed by its opinion that “Article 10, Paragraph 2 does not leave any space for restrictions on freedom of expression in the context of political speeches and debates –a domain in which freedom of expression is of the utmost importance—or in the context of public interest questions.” [para 36]

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related international and/or regional laws.

• ECHR, art. 10
• ECHR, art. 8
• ECtHR, Bédat v. Switzerland, App. No. 56925/08 (2016)
• ECtHR, Lindon, Otchakovsky-Laurens and July v. France [GC], App. Nos. 21279/02 and 36448/02 (2007)
• ECtHR, Magyar Jeti Zrt v. Hungary, App. No. 11257/16 (2018)
• ECtHR, Stern Taulats and Roura Capellera v. Spain, app. no. 51168/2015 (2018)
• ECtHR, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina, App. No. 17224/11 (2017)
• ECtHR, Couderc and Hachette Filipacchi Associés v. France, App. No. 40454/07 (2014)
• ECtHR, Palomo Sánchez and Others v. Spain [GC], App. Nos. 28955/06, 28957/06, 28959/06 and 28964/06 (2011)
• ECtHR, Delfi v. Estonia [GC], App. No. 64569/09 (2015)
• ECtHR, Savva Terentyev v Russia, App. No. 10692/09 (28 August 2018)
• ECtHR, M. L. v. Germany (2018), Nos. 60798/10 and 65599/10
• ECtHR, Vereinigung Bildender Künstler v. Austria, App. No. 68354/01 (2007)
• ECtHR, Leroy v. France, No. 36109/03 (2008)
• ECtHR, Alves da Silva v. Portugal, App. No. 41665/07 (2009)
• ECtHR, Tuşalp v. Turkey, App. No. 32131/08 & 41617/08 (2012)
• ECtHR, Grebneva and Alisimchik v. Russia, App. No. 8918/05 (2016)
• ECtHR., Kaboğlu v. Turkey (2018), Nos. 1759/08, 50766/10 and 50782/10
• ECtHR, Banaszczyk v. Poland, App no 66299/10 (2021)
• ECtHR, Cumpǎnǎ and Mazǎre v. Romania, App. No. 33348/96 (2004)
• ECtHR, Amorim Giestas and Jesus Costa Bordalo v. Portugal, App. No. 37840/10 (2014)

National standards, law or jurisprudence

• Port., Penal Code of Portugal

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official case documents, official case documents:.

• Decision (in French) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-217556%22]}

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MELBOURNE – Nathan Cofnas is a research fellow in the Faculty of Philosophy at the University of Cambridge. His research is supported by a grant from the Leverhulme Trust. He is also a college research associate at Emmanuel College. Working at the intersection of science and philosophy, he has published several papers in leading peer-reviewed journals. He also writes popular articles and posts on Substack .

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Some people at Cambridge were, however, very much bothered by Cofnas’s February post, “ A Guide for the Hereditarian Revolution .” To follow Cofnas’s “guide,” one must accept “race realism”: the view that heredity plays a role in the existing social and economic differences between different demographic groups. Only by challenging the taboo against race realism, Cofnas believes, can conservatives overcome “wokism,” which he sees as a barrier to understanding the causes of inequality and to allowing people to succeed on the basis of merit.

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Canada Wants to Regulate Online Content. Critics Say It Goes Too Far.

A bill introduced by the Canadian government to safeguard against online harms has stirred opposition from free speech advocates.

By Vjosa Isai

Reporting from Toronto

Canada has waded into the contentious issue of regulating online content with a sweeping proposal that would force technology companies to restrict and remove harmful material, especially posts involving children, that appears on their platforms.

While the intent to better monitor online content has drawn widespread support, the bill has faced intense backlash over its attempt to regulate hate speech. Critics say the proposal crosses the line into censorship.

The bill would create a new regulatory agency with the power to issue 24-hour takedown orders to companies for content deemed to be child sexual abuse or intimate photos and videos shared without consent, often referred to as revenge porn .

The agency could also initiate investigations of tech companies and impose hefty, multimillion dollar fines. Companies would have to submit digital safety plans, including design features to shield children from potentially harmful content.

The proposal by the government of Prime Minister Justin Trudeau is meant to address “the anarchy and lawlessness” of the internet, said Arif Virani, the justice minister and attorney general.

“Right now, you can empower your kids until you’re blue in the face about the internet,” Mr. Virani said in an interview. “If there are no rules on the internet, about how things will happen, how platforms will behave, then we’ve got a problem. We’re here to solve that problem.”

But others say parts of the bill, particularly the targeting of hate speech, are so onerous that they would muzzle free expression. The Canadian writer Margaret Atwood called the bill “Orwellian.”

Since 2014, the police in Canada have seen a fourfold increase in reports of child pornography and sexual offenses against children online, according to data published in March by the national census agency.

Canada’s move to regulate tech giants comes amid intensifying concern over the power of social media platforms like Facebook, Instagram, YouTube and TikTok, to disseminate harmful content with few checks.

The European Union, the United Kingdom and Australia have all adopted laws meant to police online content, while the United States is also wrestling with how to address the matter. U.S. lawmakers summoned tech executives in January to a congressional hearing on online child safety.

The bill in Canada is winding its way through Parliament and must be passed by the House of Commons and the Senate before it becomes law. Because Mr. Trudeau’s Liberal Party has an agreement with an opposition party to support government legislation, some version of the proposal is likely to pass.

The comprehensive bill calls for civil and criminal penalties on hate speech, a move that has provoked the strongest opposition.

One provision would, for the first time in Canada, establish hate as a separate crime that would encompass both written and physical acts. Currently, depending on the circumstances, hate can be added as an element to other criminal offenses but cannot be charged as a separate crime. The government argues that making it a separate crime would make it easier to track offenses.

Another measure would allow people to seek the equivalent of a protection order against someone they accuse of targeting them with hate.

The bill would also restore a regulation repealed by Parliament about a decade ago allowing Canadians to file complaints to an existing human rights commission that can ultimately lead to financial penalties of up to 50,000 Canadian dollars against people judged to have committed hate speech.

The Canadian Civil Liberties Association criticized the bill, saying it would lead to “overbroad violations of expressive freedom, privacy, protest rights and liberty,” and would give a new regulatory agency the power to be “judge, jury and executioner.”

The government seems to want to “create a much more sanitized internet and that’s very harmful for free speech because it’s the controversial stuff we need to be able to talk about,’’ said Josh Dehaas, counsel at the Canadian Constitution Foundation, a nonprofit that promotes civil liberties.

Mr. Virani, the justice minister, rejected any suggestion that the government was trying to limit free speech, saying the bill seeks to protect people from hatred.

“Free speech in this country doesn’t include hate speech,” he said.

Some experts and tech companies praised the bill, saying that the stiffest penalties were reserved for the worst forms of content and would not trample on free speech.

“It’s an incredibly thoughtful piece of legislation, if you’re looking at balancing protection from harm and protection of fundamental rights,” said Emily Laidlaw, a professor who focuses on cybersecurity law at the University of Calgary.

As the bill is in the early stages of the legislative process and criticism has been robust, changes are likely to come before a final vote. Government officials said they expected that amendments would need to be negotiated.

The leader of the Conservative Party, Pierre Poilievre, has questioned the need for more bureaucracy, saying online crimes could be dealt with through expanded criminal enforcement.

But some supporters of the bill say it would provide a faster way to tackle crimes on the internet since tech platforms could be ordered to remove content within a day.

Beyond social media sites, the bill would also apply to pornography websites and livestreaming services like Discord. Private message platforms such as Signal would be excluded.

Meta, which owns Facebook and Instagram, said it supported the Canadian government’s goal to protect young people online and wanted to collaborate “with lawmakers and industry peers on our longstanding priority to keep Canadians safe.”

Tech companies have responded to internet safety laws in other countries by saying that their internal tools, like parental controls, are already effective at protecting children, though some experts argue that it is still too easy for minors to bypass safeguards and access inappropriate content.

Canada’s proposal has become a target for right-wing and conservative media outlets in the United States, who have seized on the criminal and civil penalties to accuse Mr. Trudeau of trying to suppress political speech.

Some supporters say the bill provides regular online users a way to rein in content that can sometimes have tragic consequences.

Carol Todd, who lives in British Columbia, knows from painful personal experience what it means to confront sexual images of children online.

Her daughter was 15 when she died by suicide after a Dutch man, using some two dozen fake accounts, shared sexual images of her online and demanded money. He was eventually arrested and convicted in 2022 for sexual extortion, and is imprisoned in the Netherlands.

Ms. Todd said it was hard enough finding a place on Facebook to report the images of her daughter. “It was just so much work and it defeated my kid,” she said. (The posts were eventually removed, Ms. Todd said, though Facebook never commented on the case.)

Lianna McDonald, the director of the Canadian Center for Child Protection, said the government’s proposed online regulations could prevent other tragic outcomes.

“We’ve lost too many children,” she said, “and too many families have been devastated by the violence that occurs online.”

Both Canada and the United States have a three-digit suicide and crisis hotline: 988. If you are having thoughts of suicide, call or text 988 and visit 988.ca (Canada) or 988lifeline.org (United States) for a list of additional resources. This service offers bilingual crisis support in each country, 24 hours a day, seven days a week.

Vjosa Isai is a reporter and researcher for The Times based in Toronto, where she covers news from across Canada. More about Vjosa Isai

• Misinformation & Disinformation

What to Know About Elon Musk’s Battle With a Brazilian Judge Over Speech on Social Media

W hen billionaire Elon Musk acquired Twitter—now X—in 2022, some feared that the self-avowed free-speech “absolutist” would turn the platform into a free-for-all for disinformation . Now, as a Brazilian judge seeks to crack down on fake news on social media, he and Musk have found each other at odds in a growing spat that could have significant consequences for Musk, Brazil, and X.

On Saturday, X’s Global Government Affairs team posted that it had been forced to block “certain popular accounts in Brazil” without, in its view, sufficient explanation. It was prohibited, it said, from publicizing what accounts were impacted as well as what court or judge issued the orders.

“We believe that such orders are not in accordance with the Marco Civil da Internet or the Brazilian Federal Constitution, and we challenge the orders legally where possible,” the post said. “The people of Brazil, regardless of their political beliefs, are entitled to freedom of speech, due process, and transparency from their own authorities.”

X Corp. has been forced by court decisions to block certain popular accounts in Brazil. We have informed those accounts that we have taken this action.  We do not know the reasons these blocking orders have been issued.  We do not know which posts are alleged to violate the… — Global Government Affairs (@GlobalAffairs) April 6, 2024

Tensions escalated when Musk, in a series of posts, called out the judge, Brazil’s Federal Supreme Court Justice Alexandre de Moraes, by name and said X would not abide by his orders no matter the consequences. Musk later said de Moraes ordered the suspension of accounts belonging to “sitting members of the parliament and major journalists.”

“These are the most draconian demands of any country on Earth!” Musk said in one post .

“We will probably lose all revenue in Brazil and have to shut down our office there,” he said in another. “But principles matter more than profit.”

“This judge has brazenly and repeatedly betrayed the constitution and people of Brazil,” he said in another. “He should resign or be impeached.”

In turn, de Moraes issued a decision Sunday saying he would include Musk in his larger investigation as well as initiate a new inquiry specifically into the X owner, whom he accused of obstruction of justice and incitement to crime—actions, in the judge’s description, that “disrespect Brazil’s sovereignty.”

X has not responded to TIME’s request for comment. Here’s what to know about the situation.

Who is Alexander de Moraes?

De Moraes was appointed to Brazil’s Supreme Federal Court in 2017 after previously serving as Minister of Justice and Public Security. He has also served as president of the country’s electoral tribunal since 2022 and is known as a crusader against anti-democratic forces in Brazil.

As a justice, de Moraes has ordered investigations into former President Jair Bolsonaro and his involvement with the post-election capitol riots in Brasilia last year . He has also jailed some of Bolsonaro’s supporters for what he claims to be attacks on Brazil’s democratic institutions .

Since 2019 , De Moraes has led an investigation into Brazil’s so-called “digital militias” —purveyors of fake news for political or ideological groups—that have been verbally attacking court members.

In March 2022, de Moraes ordered the nationwide suspension of Telegram , a platform used heavily by Bolsonaro and his supporters, for its alleged failure to shut down disinformation networks. Just ahead of the October 2022 presidential election runoff between Lula da Silva and Bolsonaro, the electoral tribunal gave de Moraes unilateral power to order tech companies to remove online posts and videos under the threat of suspension in Brazil .

Right-wing politicians, including Bolsonaro, have accused de Moraes of overstepping his authority and abusing his power , though many of de Moraes’ defenders argue that the judge’s approach is sound, given the fragility of democracy in the country.

How has Brazil’s government responded to Elon Musk?

On Sunday, de Moraes warned against Musk’s decision to defy the order on blocking certain accounts, saying that each reactivated account would entail a fine of 100,000 reais ($20,000) per day.

Brazil’s attorney general Jorge Messias also reacted on X, saying that it is “urgent” that Brazil regulate social media networks operating in the country.

“We cannot live in a society in which billionaires domiciled abroad have control of social networks and put themselves in a position to violate the rule of law, failing to comply with court orders and threatening our authorities,” Messias said . “Social peace is non-negotiable.”

In a separate post , Brazilian lawmaker Orlando Silva said Musk has disrespected the country’s judiciary, adding that he would propose legislation on a “responsibilities regime for these digital platforms.”

“We have reached a limit,” Silva said. “It is a response in defense of Brazil.”

And Brazil’s Secretary of Social Communication Paulo Pimenta posted on X in response to de Moraes’ opening of an investigation into Musk: “We will not be intimidated. Our Country is sovereign and no one is going to impose their authoritarian will and enforce the logic that money makes their ‘business model’ above the Federal Constitution.”

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