legal essay on freedom of expression

Advertisement

Justifying Limitations on the Freedom of Expression

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

Cite this article

You have full access to this open access article

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

158k Accesses

11 Citations

30 Altmetric

Explore all metrics

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.

Similar content being viewed by others

The Bill of Rights and Freedom of Belief and Expression: They Provide for Liberty, Not License

Toleration and the Law

Avoid common mistakes on your manuscript.

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)

Download references

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.

Author information

Authors and affiliations.

Harvard Law School, Cambridge, MA, USA

Gehan Gunatilleke

University of Oxford, Oxford, UK

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Gehan Gunatilleke .

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ .

Reprints and permissions

About this article

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

Download citation

Accepted : 26 October 2020

Published : 01 November 2020

Issue Date : March 2021

DOI : https://doi.org/10.1007/s12142-020-00608-8

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Freedom of expression
• Limitations on rights
• Duties of justice
• State authority
• Justification
• Public reason
• Find a journal
• Publish with us
• Track your research

Freedom of Expression Essay

Searching for freedom of expression essay? Look no further! This argumentative essay about freedom of expression, thought, & speech, will inspire you to write your own piece.

Introduction

• The Key Concepts

Freedom of expression refers to the right to express one’s opinions or thoughts freely by utilizing any of the different modes of communication available. The ideas aired should, however, not cause any intentional harm to other personality or status through false or ambiguous statements. Communication of ideas can be achieved through speech, writing or art. Freedom of expression, unlike freedom of thought, may be regulated by the appropriate authorities in any society in order to avoid controversies between different individuals.

The extent to which this limitation or censorship is done varies from nation to nation and is dependent on the government of the day. According to the Universal Declaration of Human Rights, every individual has the right to search for information, access and impart variety of ideas irrespective of the frontiers.

Freedom of Expression: The Key Concepts

The subject of freedom of expression has always been controversial, especially when considering political aspects. A state is perceived to have the mandate to impede people from convening groups in which they air their opinions if those views can result in direct harm to other people.

However, the interference would only be an exception if doing so results in more beneficial outcomes than standing aside. For one to be in a position to gauge the eventuality of a gain or a loss, then there should be absolute freedom of expression on all matters irrespective of the nature of the sentiments made.

Arguments for absolute freedom of expression can be a made by evaluating the purpose for which the ideas are expressed and the manner in which we evaluate what is true or false. According to Mill (Eisenach, 2004), the right to express one’s opinions offers humanity a rare chance to switch over an error for the truth if the idea expressed happens to be true.

In case the opinion happens to be wrong, mankind stands a chance of getting a clearer picture of the known truth through collusion with a mistake. Therefore, freedom of expression acts in the best interests of mankind as it endeavors to progress and its limitation deprives people of the prospects of growth.

Whether we let expression of an opinion to be limited or censored, whereas it could be true, then we present ourselves as beyond reproach. We consider all that we know to be the truth and therefore dispel all opinions that question this truth. It is possible for people or authorities to be in fault. For instance, what we consider to be morally right or wrong may not be so.

The lines that define moral rights and wrongs were set by people who could possibly have mistaken. In order to draw the limit, one must differentiate between sureness and the truth. Our certainty that a particular idea is false does not in any way excuse its expression. Suppressing such an idea would not only justify our confidence of the opinion being wrong, but also proves that we are flawless.

If limitation of people’s freedom of expression in matters such as racism is based on certainty that mankind does not stand to lose any benefit, then this sureness should be founded in the freedom itself. We can only consider ourselves to be certain when there have been no opinions raised to question the truths we hold. Therefore, in order to boost our certainty, we have to leave room for the opposing beliefs.

There are governments that censor the expression of certain ideas not because they are false, but because they are considered to be hazardous to the society. Mill argues that in such a situation, the hazard in the expressed opinions is questionable. The only way to ascertain that the opinion is in fact dangerous is not to suppress its expression but to allow its free discussion.

Secondly, if the opinion that is being limited is true, then the alternative view held by the government must be false. Experience has shown that all beliefs that are false are never constructive in the long run. Therefore, the government that prefers to hold a false conviction in place of a hazardous truth does not act in the best interests of its people.

In many instances, the silenced view may be a mistake. However, most of these mistakes do carry with them a scrap of truth. On the other hand, the existing view on each of the different topics often does not contain the entire truth. By listening to the opinions of others on the matter, an opportunity to learn the rest of the uncovered truths presents itself.

For instance in politics, we could have two political parties with different agendas. One wants to institute reforms while another desires to ensure stability. People may not be in a position to discern what should be retained or altered, but ensuring the parties at opposing ends ensures each party checks on the performance of the other. In the long run, we strike for a beneficial balance between their supposed agendas (Bhargava, 2008).

Moreover, if the opinion being expressed is entirely true, it may not be considered so with certainty. For confidence to feature, these views must be contested against other rational opinions of others in order to single out the supporting arguments. It is expected that those who believe in their opinions will place strong arguments in their favor (Matravers, 2001).

If an authority believes in the rationality of its ideas, then it should leave room for the expression of opposing ideas. For instance, if any reigning political party has faith in the views it has concerning the development of the country’s economy, it should not be wary of an opposition party with contradicting views. After all what they stand for has factual backing (O’Rourke, 2001).

Lastly, the battle for supremacy between different opinions opens up a more comprehensive understanding of our beliefs. We begin to comprehend what is required of us and are, thus, in a position to act on them. Human beliefs do not exhibit any motivation and the debates that arise are what add fuel to the fire.

Holding beliefs with a conservative mindset only serves to hinder our acceptance of the possible alternatives (Jones, 2001). Therefore, opposition exhibited in the freedom of speech opens up a lee way for open-mindedness besides posing a challenge to hypocrisy and logical sluggishness.

The absence of restrictions on people’s freedom of oppression allows for the exchange of error for truth or the clarification of the existing truth. It also reinforces our certainty in the opinions we consider true besides increasing our open-mindedness and thoughtfulness. For governments, it ensures those entrusted with the leadership of the country have reasonable opinions that work for the common good of the country’s citizens.

Free discussion and analysis of different ideas will, thus, result in the prosperity of mankind rather than the detrimental effects it is assumed to bring.

Freedom of Expression FAQ

• What Is Freedom of Expression? Freedom of expression is the ability of individual people and groups to express their thoughts, beliefs, emotions, and ideas without any restrictions or censorship from the government. This freedom is protected by the First Amendment of the US Constitution.
• How Does Freedom of Expression Protect Individual Liberty? The First Amendment of the US Constitution guarantees freedom of expression to all citizens. This means that the US Congress does not have the right to restrict the media or people from speaking freely. People also have the right to peaceful assemblies and petitions to the government.
• Why Is Freedom of Expression Important for Democracy? Freedom of expression is an essential human right. It guarantees the free exchange of information, opinions, and ideas in the public space, allowing people to independently form their own views on all the essential issues.

Bhargava, H. (2008). Political Theory: An Introduction . Delhi: Pearson Education.

Eisenach, E. (2004). Mill and Moral Character . New York: Penn State Press.

Jones, T. (2001). Modern Political Thinkers and Ideas: An Historical Introduction . New York: Routledge.

Matravers, D. (2001) Reading Political Philosophy: Machiavelli to Mill . New York: Routledge.

O’Rourke, K. (2001). John Stuart Mill and Freedom of Expression: The Genesis of a Theory . Connecticut: Taylor & Francis.

• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2023, October 29). Freedom of Expression Essay. https://ivypanda.com/essays/freedom-of-expression/

"Freedom of Expression Essay." IvyPanda , 29 Oct. 2023, ivypanda.com/essays/freedom-of-expression/.

IvyPanda . (2023) 'Freedom of Expression Essay'. 29 October.

IvyPanda . 2023. "Freedom of Expression Essay." October 29, 2023. https://ivypanda.com/essays/freedom-of-expression/.

1. IvyPanda . "Freedom of Expression Essay." October 29, 2023. https://ivypanda.com/essays/freedom-of-expression/.

Bibliography

IvyPanda . "Freedom of Expression Essay." October 29, 2023. https://ivypanda.com/essays/freedom-of-expression/.

• The Certainty and Doubt Relationship
• Political Change in Russia and Why Reform Is a Certainty
• Discovering Faith: The Search for Truth and Certainty
• Freedom of Speech and Expression
• The Rome II Regulation Analysis
• A Defense of Skepticism: Discussion
• This Earth of Mankind
• The Importance of Freedom of Speech
• How the God Communicates With the Mankind
• Prometheus: The Protector and Benefactor of Mankind
• Universal Moral and Legal Codes
• Animal Cruelty as an Ethical and Moral Problem
• Death Penalty and Ethics
• Attorney Client Privilege: Alton Logan’s Law Case
• Safety at the Construction Sites

Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI — hardly ancient history — that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution’s framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish “any false, scandalous and malicious writing” against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

From then on, the right to freedom of expression grew more secure — until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the “clear and present danger” test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES “PROTECTED SPEECH” INCLUDE?

First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government’s interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of “national security” to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the “Pentagon Papers” by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country’s involvement in Vietnam, was leaked to the press. When the Times ignored the government’s demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through “prior restraint,” block publication of any material unless it could prove that it would “surely” result in “direct, immediate, and irreparable” harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government’s claims of “national security” must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called “fighting words … which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected. This decision was based on the fact that fighting words are of “slight social value as a step to truth.”
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished — only if the offended official can prove the falsehoods were published with “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.” Other kinds of “libelous statements” are also punishable.
• Legally “obscene” material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It’s the foundation of self-fulfillment. The right to express one’s thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself — and as such, deserves society’s greatest protection.

It’s vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one’s own conclusions against opposing views. Therefore, all points of view — even those that are “bad” or socially harmful — should be represented in society’s “marketplace of ideas.”

It’s necessary to our system of self-government and gives the American people a “checking function” against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual’s freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, Anchor Press, 1995.

To order call 1-800-775-ACLU

Related Issues

• National Security

Stay Informed

Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.

By completing this form, I agree to receive occasional emails per the terms of the ACLU’s privacy statement.

• Summary Modules on Digital Rights and Freedom of Expression Online in sub-Saharan Africa

Module 1: Key Principles of International Law and Freedom of Expression

The right to freedom of expression under international law, freedom of expression under international law.

The rights contained under article 19 of the ICCPR comprise three core tenets: the right to hold opinions without interference (freedom of opinion); the right to seek and receive information (access to information); and the right to impart information (freedom of expression).

The UN Human Rights Committee’s (UNHRCtte) General Comment No. 34 on the ICCPR notes that the right to freedom of expression includes, for example, political discourse, commentary on one’s own affairs and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse.( 1 ) It also embraces expression that may be regarded by some as deeply offensive.( 2 ) The right covers communications that are both verbal and non-verbal, and all modes of expression, including audio-visual, electronic and internet-based modes of communication.( 3 )

In terms of article 19(3) of the ICCPR, the right to freedom of expression contained in article 19(2) may be subject to certain restrictions:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order ( ordre public ), or of public health or morals.”

With respect to a limitation on the right to freedom of expression under article 19(2) of the ICCPR, a three-part test is used to assess whether such a limitation is justified: (i) the limitation must be provided for in law; (ii) it must pursue a legitimate aim; and (iii) it must be necessary for a legitimate purpose.( 4 ) This test applies similarly to limitations of the right to freedom of expression under other legal instruments, including the African Charter.

Freedom of expression online

Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. General Comment No. 34 further explains that article 19(2) includes internet-based modes of communication.( 5 )

In a 2016 resolution, the UN Human Rights Council ( UNHRC ) affirmed that:( 6 )

“[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”

In 2016, the African Commission on Human and Peoples’ Rights ( ACHPR ) affirmed the UNHRC’s declaration and called on states to respect and to take legislative and other measures to guarantee, respect and protect citizens’ rights to freedom of information and expression through access to internet services.( 7 ) This was supplemented in 2019 by the Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted by the ACHPR, which recognises the role of new digital technologies in the realisation of the rights to freedom of expression and access to information, and also affirms that the same rights that people have offline should be protected online in accordance with international human rights law and standards.( 8 )

The new Declaration differs from the 2002 Declaration in the following notable ways:

• It calls on States to “recognise that universal, equitable, affordable and meaningful access to the internet is necessary for the realisation of freedom of expression [and] access to information.”( 9 )
• It “articulates State obligations with respect to internet intermediaries, noting that States must ensure that internet intermediaries provide access to the internet in a non‑discriminatory manner and that the use of algorithms or other artificial intelligence uses do not infringe on international human rights standards.”( 10 )
• It provides guidance on requests to remove online content.( 11 )

It addresses the protection of personal information and communication surveillance and requires States to adopt laws regulating the processing of personal information.( 12 )

While freedom of expression is clearly protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, given how frequently the principle is enunciated in treaties, as well as other soft law instruments.( 13 ) Most human rights treaties, including those dedicated to the protection of the rights of specific groups — such as women, children, and people with disabilities — also make explicit mention of freedom of expression.( 14 )

Freedom of expression in the digital age

In recent years, freedom of expression has been under attack from a variety of new and challenging sources. First, the rise of social media and new media platforms has in many places decimated the revenue model for independent media, leaving many media houses weakened or bankrupt and unable to play their crucial role of holding power to account. Second, the rise of the internet has upended the traditional information eco-system. This has resulted in a backlash from governments seeking to regulate growing cybercrimes and a flood of misinformation, often to the detriment of freedom of expression and legitimate dissent.( 15 ) Ethiopia has recently passed a controversial social media law that was criticised for restricting online speech, and Nigeria is attempting to do the same with the so-called ‘Social Media Bill.’ [footnte]Al Jazeera ‘Nigerians raise alarm over controversial Social Media Bill’ (2019) (accessible at: https://www.aljazeera.com/news/2019/12/18/nigerians-raise-alarm-over-controversial-social-media-bill ) and Al Jazeera, ‘Ethiopia passes controversial law curbing ‘hate speech’ (2020) (accessible at https://www.aljazeera.com/news/2020/02/ethiopia-passes-controversial-law-curbing-hate-speech-200213132808083.html ).[/footnote]

• Share on Twitter
• Share on Facebook
• Share on Linkedin
• Share on email
• OHCHR, General Comment No. 34 at para 11. (2011) (accessible at: https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf ). Back
• Ibid at para 11.  For further discussion on this, see Nani Jansen Reventlow, ‘The right to ‘offend, shock or disturb’, or the importance of protecting unpleasant speech’ in Perspectives on harmful speech online: A collection of essays, Berkman Klein Center for Internet & Society, 2016 at pp 7-9 (accessible at: http://nrs.harvard.edu/urn-3:HUL.InstRepos:33746096 ). Back
• Ibid General Comment No. 34 at para 12. Back
• For a fuller discussion on how freedom of expression may be legitimately limited, see the training manual published by Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’ at pp 14-16 (2018) accessible at: https://www.mediadefence.org/resource-hub/resources/media-defence-training-manual-on-international-and-comparative-media-and-freedom-of-expression-law/ ). Back
• General Comment No. 34 above at n 4 at para 12. Back
• UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/32/L.20 (2016) at para 1 (accessible at: https://digitallibrary.un.org/record/845728?ln=en ). Back
• ACHPR, ‘Resolution on the right to freedom of information and expression on the internet in Africa’, ACHPR/Res.362, (2016) (accessible at: https://www.achpr.org/sessions/resolutions?id=374 ). Back
• ACHPR, ‘Declaration of Principles on Freedom of Expression and Access to Information in Africa,’ (2019) (accessible at: https://www.achpr.org/public/Document/file/English/Declaration%20of%20Principles%20on%20Freedom%20of%20Expression_ENG_2019.pdf ).The Declaration replaces the Declaration of Principles on Freedom of Expression in Africa which the African Commission adopted in 2002, accessible at: https://www.achpr.org/presspublic/publication?id=3 ). Back
• ACHPR, ‘Declaration of Principles on Freedom of Expression and Access to Information in Africa’, Principle 37(2) (2019) (accessible at: https://www.achpr.org/legalinstruments/detail?id=69 ). Back
• International Justice Resource Center, ‘New ACHPR Declaration on Freedom of Expression & Access to Information’ (2020) (accessible at: https://ijrcenter.org/2020/04/22/new-achpr-declaration-on-freedom-of-expression-access-to-information/ ). Back
• ACHPR above at n 15 at Principle 39(4). Back
• Ibid at Principle 42. Back
• Carver above at n 7 at p. 5. Back
• Ibid at p 5. Back
• For more see Washington Post, ‘There’s a worrying rise in journalists being arrested for ‘fake news’ around the world’ (2019)(accessible at: https://www.washingtonpost.com/world/2019/12/12/theres-worrying-rise-journalists-being-arrested-fake-news-around-world/ ) and Freedom House, ‘The Rise of Digital Authoritarianism: Fake news, data collection and the challenge to democracy’ (2018)(accessible at: https://freedomhouse.org/article/rise-digital-authoritarianism-fake-news-data-collection-and-challenge-democracy ). Back

• Subject List
• Take a Tour
• For Authors
• Subscriber Services
• Publications
• African American Studies
• African Studies
• American Literature
• Anthropology
• Architecture Planning and Preservation
• Art History
• Atlantic History
• Biblical Studies
• British and Irish Literature
• Childhood Studies
• Chinese Studies
• Cinema and Media Studies
• Communication
• Criminology
• Environmental Science
• Evolutionary Biology

International Law

• International Relations
• Islamic Studies
• Jewish Studies
• Latin American Studies
• Latino Studies
• Linguistics
• Literary and Critical Theory
• Medieval Studies
• Military History
• Political Science
• Public Health
• Renaissance and Reformation
• Social Work
• Urban Studies
• Victorian Literature
• Browse All Subjects

How to Subscribe

• Free Trials

In This Article Expand or collapse the "in this article" section Freedom of Expression

Introduction.

• Civil Society Reports
• Normative Justifications
• United Nations
• The Americas
• The Arab States
• Child’s Right to Freedom of Expression
• Commercial Speech
• Conflict and Terrorism
• Defamation of Religion
• Freedom of Association
• Freedom of Information
• Genocide and Atrocity Crimes
• Hate Speech
• Internet and Mobile-Based Communication
• Privacy and Surveillance
• Sexual Orientation and Gender Identity

Related Articles Expand or collapse the "related articles" section about

About related articles close popup.

Lorem Ipsum Sit Dolor Amet

Vestibulum ante ipsum primis in faucibus orci luctus et ultrices posuere cubilia Curae; Aliquam ligula odio, euismod ut aliquam et, vestibulum nec risus. Nulla viverra, arcu et iaculis consequat, justo diam ornare tellus, semper ultrices tellus nunc eu tellus.

• Cultural Rights
• Human Rights

Other Subject Areas

Forthcoming articles expand or collapse the "forthcoming articles" section.

• China and the Law on Use of Force
• China and World Trade Organization Law
• Legitimacy in International Law
• Find more forthcoming articles...
• Export Citations
• Share This Facebook LinkedIn Twitter

Freedom of Expression by Mark J. Richards LAST REVIEWED: 12 May 2017 LAST MODIFIED: 27 November 2023 DOI: 10.1093/obo/9780199796953-0105

Freedom of expression is a fundamental international human right. It is intrinsically valuable and necessary for the healthy functioning of democracy and civil society. Freedom of expression is necessary for the achievement of other human rights such as fair administration of justice, education, adequate standard of living, equality, human dignity, and the rights of women, peoples, and minorities. Although it is generally a negative liberty, freedom of expression places positive obligations on the state to provide access to information, Internet access, and to promote a child’s right to participate in education, work, and family life. Freedom of expression broadly understood encompasses a package of rights that are intimately intertwined, including freedom of opinion, speech, press, information, association, assembly, thought, conscience, belief, and religion. Although the rights can be conceptually organized into the four categories of expression, association, assembly, and thought, each with distinct meaning, actual cases commonly involve more than one of the rights. For example, a ban on wearing headscarves in a public educational setting raises issues of freedom of expression and religion. Freedom of expression is recognized by the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights (ACHPR), the American Convention on Human Rights (ACHR), the Arab Charter on Human Rights (Arab Charter), and the European Convention on Human Rights (ECHR). Although freedom of expression is fundamental, it is not absolute. Article 19 of the ICCPR allows for restrictions on freedom of expression that are necessary to protect the rights or reputations of others, national security, public order, public health, or public morals. Any such restriction must be provided for by law and be proportionate. The literature on freedom of expression as an international human right tends to focus on cases and jurisprudence, with some attention paid to the roles of international human rights institutions. Regional and international civil society groups actively highlight current threats to freedom of expression, often in cases of threats to individuals, journalists, or small groups, but also more systematically via annual, country, regional, and thematic reports. Many of the most prevalent issues of the past decade revolve around the Internet such as hate speech, regulation of social media, Internet access, disinformation, and surveillance. Of course, the Internet has transformed communications, but it has also enabled unprecedented state and international surveillance that threatens privacy and freedom of expression alike. Other contemporary free expression issues arising under international law include protection of journalists and human rights defenders, sexual orientation and gender identity (SOGI), genocide and atrocity crimes, the speech rights of the child, and religion.

Barendt 2007 is a masterful treatment of the comparative law of freedom of expression. The second edition provides extensive coverage of the European Commission and (later) European Court of Human Rights (ECtHR) in addition to cases from Australia, Canada, France, Germany, Italy, New Zealand, South Africa, the United States, and the United Kingdom. Barendt evaluates why freedom of speech should be protected, reviews its scope, and compares how it is treated in liberal democracies. He provides detailed, comparative analyses of a wide range of freedom of speech issues. Zeno-Zencovich 2008 covers European freedom of expression, takes a policy focus, and is especially attentive to the European Convention on Human Rights (ECHR). Textbooks in international human rights law typically have a chapter devoted to freedom of expression. McGoldrick 2022 provides a comprehensive overview of freedom of expression, including freedom of thought, religion, association, and assembly. Janis, et al. 2008 devotes one chapter to freedom of expression and association and another to freedom of thought, conscience, and religion. They integrate explication and analysis with excerpts of the case law of the ECtHR. They also include extensive citations to case law as well as citations to select journal articles. While the primary focus is on the ECtHR, the chapters have an insightful comparative dimension. Chen and Renteln 2023 includes a comprehensive chapter on media and human rights in the authors’ introductory human rights textbook, which would be highly suitable for an undergraduate human rights course. See also the section Textbooks in the Oxford Bibliographies article “ Human Rights .” The edited volume Bollinger and Callamard 2021 takes a global norm approach to cover a wide range of free expression issues and would be an excellent supplementary text. Similarly, Hare and Weinstein 2009 is rich with international law content. The book contains more than thirty chapters written by a wide variety of scholars. Cram 2006 would be an excellent auxiliary text for any course focusing on freedom of expression in international law. Cram advances the contention that the judiciary in various jurisdictions plays a critical role in securing and promoting participatory democracy. He evaluates this thesis by reference to a variety of freedom of expression topics, including international issues arising under ECHR such as banning parties, party access to broadcast media, Holocaust denial, pro-Nazi expression, child pornography, and commercial expression. He also compares ECHR law to the law in Australia, Canada, the United Kingdom, and the United States.

Barendt, Eric. Freedom of Speech . 2d ed. Oxford: Oxford University Press, 2007.

DOI: 10.1093/acprof:oso/9780199225811.001.0001

Introductory chapters cover the scope of, and justifications for, freedom of speech and compare freedom of speech in liberal democracies. Remaining chapters are devoted to particular topics, including prior restraints, political speech, libel, copyright, assembly, protests, public fora, judicial process, pornography, commercial speech, media, Internet, campaign finance, employment, and education.

Bollinger, Lee C., and Agnès Callamard. Regardless of Frontiers: Global Freedom of Expression in a Troubled World . New York: Columbia University Press, 2021.

DOI: 10.7312/boll19698

Edited volume uses constructivist theory and comparative legal theory to understand what norms qualify as global freedom of expression norms, along with how those norms are contested and developed. Organizes nineteen chapters around four main themes: global norms, institutions and actors as norm entrepreneurs, anti-globalization and conflicts over norms, and global jurisprudence.

Chen, Cher W., and Alison D. Renteln. “Media and Human Rights.” In International Human Rights: A Survey . By Cher W. Chen and Alison D. Renteln, 541–587. Cambridge, UK: Cambridge University Press, 2023.

Comprehensive, media-focused overview of various freedom of expression and human rights issues. Covers issues such as Internet access, the rise of social media, digital privacy and the right to be forgotten, access to information, hate speech, the protection of journalists, and media in human rights advocacy.

Cram, Ian. Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies . Aldershot, UK: Ashgate, 2006.

Applies legal philosophy to case law to claim that the judiciary has an important role to play in promoting a more participatory democracy. A consensus exists that political expression is to be protected in liberal democracy. Considers the impact of ECHR on British and European law in various contexts.

Hare, Ivan, and James Weinstein, eds. Extreme Speech and Democracy . Oxford: Oxford University Press, 2009.

For specific chapters covering extreme speech in international law, see Dworkin 2009 and Malik 2009 (cited under Normative Justifications ), Fraser 2009 (cited under Genocide and Atrocity Crimes ), Finnis 2009 and McGoldrick 2009 (cited under Religion ), and Cram 2009 , Hare 2009 , and Whine 2009 (cited under Genocide and Atrocity Crimes ).

Janis, Mark W., Richard S. Kay, and Anthony W. Bradley. European Human Rights Law . Oxford: Oxford University Press, 2008.

Chapter 6 covers freedom of expression and association, and chapter 7 covers freedom of thought, conscience, and religion. Chapters integrate detailed analysis with extensive excerpts from ECtHR case law.

McGoldrick, Dominic. “Thought, Expression, Association and Assembly.” In International Human Rights Law . 4th ed. Edited by Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris, 209–234. New York: Oxford University Press, 2022.

DOI: 10.1093/he/9780198860112.001.0001

Provides a broad overview, replete with citations to international legal cases, of the four interrelated freedoms: thought (including religion, conscience, and belief), expression (including opinion and access to information), association, and assembly. Explains sources in international law, scope of freedoms, and recognized limitations.

Zeno-Zencovich, Vincenzo. Freedom of Expression: A Critical and Comparative Analysis . New York: Routledge-Cavendish, 2008.

DOI: 10.4324/9780203893081

Takes a policy-oriented look at contemporary freedom of expression issues arising in Europe, especially broadcasting, journalism, advertising, economic regulation, and the Internet. Includes ECHR and comparative European law.

back to top

Users without a subscription are not able to see the full content on this page. Please subscribe or login .

Oxford Bibliographies Online is available by subscription and perpetual access to institutions. For more information or to contact an Oxford Sales Representative click here .

• About International Law »
• Meet the Editorial Board »
• Act of State Doctrine
• Africa and Intellectual Property Rights for Plant Varietie...
• African Approaches to International Law
• African Commission on Human and Peoples' Rights and the Af...
• Africa’s International Intellectual Property Law Regimes
• Africa’s International Investment Law Regimes
• Agreements, Bilateral and Regional Trade
• Agreements, Multilateral Environmental
• Applicable Law in Investment Agreements
• Archipelagic States
• Arctic Region
• Armed Opposition Groups
• Aut Dedere Aut Judicare
• Balance of Power
• Bandung Conference, The
• British Mandate of Palestine and International Law, The
• Children's Rights
• China, Judicial Application of International Law in
• China, Law of the Sea in
• Civil Service, International
• Civil-Military Relations
• Codification
• Cold War International Law
• Collective Security
• Command Responsibility
• Common Heritage of Mankind
• Complementarity Principle
• Compliance in International Law
• Conspiracy/Joint Criminal Enterprise
• Constitutional Law, International
• Consular Relations
• Contemporary Catholic Approaches
• Continental Shelf, Idea and Limits of the
• Cooperation in Criminal Matters, Cross-Border
• Countermeasures
• Courts, International
• Crimes against Humanity
• Criminal Law, International
• Cyber Espionage
• Cyber Warfare
• Debt, Sovereign
• Decolonization in International Law
• Development Law, International
• Disarmament in International Law
• Discrimination
• Disputes, Peaceful Settlement of
• Drugs, International Regulation, and Criminal Liability
• Early 19th Century, 1789-1870
• Ecological Restoration and International Law
• Economic Law, International
• Effectiveness and Evolution in Treaty Interpretation
• Enforced Disappearances in International Law
• Enforcement of Human Rights
• Environmental Compliance Mechanisms
• Environmental Institutions, International
• Environmental Law, International
• European Arrest Warrant
• Exclusive Economic Zone
• Extraterritorial Application of Human Rights Treaties
• Fascism and International Law
• Feminist Approaches to International Law
• Financial Law, International
• Forceful Intervention for Protection of Human Rights in Af...
• Foreign Investment
• Fragmentation
• Freedom of Expression
• French Revolution
• Gender and International Law, Theoretical and Methodologic...
• Gender and International Security
• General Customary Law
• General Principles of Law
• Georgia and International Law
• Grotius, Hugo
• Habeas Corpus
• Hijaz and International Law, The
• History of International Law, 1550–1700
• Hostilities, Direct Participation in
• Human Rights and Regional Protection, Relativism and Unive...
• Human Rights, European Court of
• Human Rights, Foundations of
• Human Rights Law, History of
• Human Trafficking
• Hybrid International Criminal Tribunals
• Immunity, Sovereign
• Indigenous Peoples
• Individual Criminal Responsibility
• Institutional Law
• Inter-American Commission on Human Rights (IACHR) and Inte...
• International and Non-International Armed Conflict, Detent...
• International Committee of the Red Cross
• International Community
• International Court of Justice
• International Criminal Court, The
• International Criminal Law, Complicity in
• International Criminal Tribunal for Rwanda (ICTR)
• International Criminal Tribunal for the Former Yugoslavia ...
• International Fisheries Law
• International Humanitarian Law
• International Humanitarian Law, Targeting in
• International Intellectual Property Law, China and
• International Investment Agreements, Fair and Equitable Tr...
• International Investment Arbitration
• International Investment Law, China and
• International Investment Law, Expropriation in
• International Law, Aggression in
• International Law, Amnesty and
• International Law and Economic Development
• International Law, Anthropology and
• International Law, Big Data and
• International Law, Climate Change and
• International Law, Derogations and Reservations in
• International Law, Dispute Settlement in
• International Law, Ecofeminism and
• International Law, Espionage in
• International Law, Hegemony in
• International Law in Cyberspace, China and
• International Law in Greek
• International Law in Italian
• International Law in Northeast Asia
• International Law in Portuguese
• International Law in Turkish
• International Law, Marxist Approaches to
• International Law, Military Intervention in
• International Law, Money Laundering in
• International Law, Monism and Dualism in
• International Law, Peacekeeping in
• International Law, Proportionality in
• International Law, Reasonableness in
• International Law, Recognition in
• International Law, Self-Determination in
• International Law, State Responsibility in
• International Law, State Succession in
• International Law, the State in
• International Law, The Turkish-Greek Population Exchange a...
• International Law, the Turn to History in
• International Law, The United States and
• International Law, Trade and Development in
• International Law, Unequal Treaties in
• International Law, Use of Force in
• International Regulation of the Internet
• International Relations Study in China, International Law ...
• International Rule of Law, An
• International Territorial Administration
• International Trade and Human Rights
• Intervention, Humanitarian
• Investment Protection Treaties
• Investor-State Conciliation and Mediation
• Iran and International Law
• Iraq War, Britain and the
• Islamic Cooperation, International Law and the Organizatio...
• Islamic International Law
• Islamic Law and Human Rights
• Jurisdiction
• Jurisprudence (Judicial Law-Making)
• Landlocked Countries and the Law of the Sea
• Law of the Sea
• Law of Treaties, The
• Law-Making by Non-State Actors
• League of Nations, The
• Lebanon, Special Tribunal for
• Legal Status of Military Forces Abroad
• Liability for International Environmental Harm
• Liberation and Resistance Movements
• Mandates in International Law
• Maritime Delimitation
• Martens Clause
• Medieval International Law
• Mens Rea, International Crimes
• Middle East Boundaries and State Formation
• Military Necessity
• Military Occupation
• Modes of Participation
• Most-Favored-Nation Clauses
• Multinational Corporations in International Law
• Nationality and Statelessness
• Natural Law
• New Approaches to International Law
• New Haven School of International Law, The
• Noninternational Armed Conflict (“Civil War”)
• Nonstate Actors
• Nuclear Non-Proliferation
• Nuremberg Trials
• Organizations, International
• Pacifism in International Law
• Palestine (and the Israel Question)
• Peace Treaties
• Political Science, International Law and
• Private Military and Security Companies
• Protection, Diplomatic
• Public Interest, Human Rights, and Foreign Investment
• Queering International Law
• Rational Choice Theory
• Recognition of Foreign Penal Judgments
• Refugee Law, China and
• Rendition, Extraterritorial Abduction, and Extraordinary R...
• Reparations
• Russian Approaches to International Law
• Sanctions, International
• Self-Defense
• Spanish School of International Law (c. 16th and 17th Cent...
• Sports Law, International
• State of Necessity
• Superior Orders
• Taba Arbitration, The
• Teaching International Law
• Territorial Title
• The 1948 Arab-Israeli Conflict and International Law
• The Ottoman Empire and International Law
• Theory, Critical International Legal
• Tokyo Trials, The
• Transnational Constitutionalism, Africa and
• Transnational Corruption
• Treaty Interpretation
• Ukrainian Approaches
• UN Partition Plan for Palestine and International Law, The
• UN Security Council, Women and the
• Underwater Cultural Heritage
• Unilateral Acts
• United Nations and its Principal Organs, The
• Universal Jurisdiction
• Uti Possidetis Iuris
• Vatican and the Holy See
• Victims’ Rights, International Criminal Law, and Proceedin...
• Watercourses, International
• Western Sahara
• Privacy Policy
• Cookie Policy
• Legal Notice
• Accessibility

Powered by:

• [66.249.64.20|195.158.225.230]
• 195.158.225.230

Freedom of Expression and the Rule of Law

UNESCO cooperates with the judiciary and security forces to support their vital role in reinforcing the “three Ps” (Prevention, Protection, and Prosecution), to guarantee journalist’s safety and end impunity for crimes against them . We raise the capacities of judicial actors and law enforcement agents on international and regional standards on freedom of expression, access to information and the safety of journalists through Massive Open Online Courses (MOOCs) , on-the-ground training and workshops, and the publications of toolkits and guidelines .  We do this within the framework of the UN Plan of Action on Safety of Journalists and the Issue of Impunity .

Just released

10 years: UNESCO's Judges' Initiative

Our actions, our stories, how to stop impunity for crimes against journalists.

Why impunity of crimes against journalists prevails? - It is not an easy answer. But when a journalist is attacked for his or her work, not only is the journalist's individual right to freedom of expression violated, but also the collective rights of society to access information. Silencing a journalist should not only be a concern for one individual or journalistic union, it is an issue that affects society as a whole, its present and its future.

This video is also available with subtitles in Arabic , Chinese , French , Russian and Spanish .

The Legitimate Limits to Freedom of Expression: The Three-Part Test

Freedom of expression is a fundamental right, indispensable in democratic societies. However, this right is not an absolute right, and may be lawfully restricted according to certain principles and conditions. Under international human rights law, and specifically, article 19 of the International Covenant on Civil and Political Rights (ICCPR), the three-part test determines whether a restriction on freedom of expression is legitimate.

More videos on the Freedom of Expression and the Rule of Law

from 150 countries trained on international and regional standards on freedom of expression.

trained on freedom of expression and safety of journalists related issues.

with regional human rights courts, international judicial and police associations.

Upcoming Events

Event Working group meeting Open-ended working group for the revision of the Rules of Procedure of the Conference of Parties - 2005 Convention

Our Publications

• Help and information
• Comparative
• Constitutional & Administrative
• Criminal Justice
• Criminology
• Environment
• Equity & Trusts
• Competition
• Human Rights & Immigration
• Intellectual Property
• International Criminal
• International Environmental
• Private International
• Public International
• IT & Communications
• Jurisprudence & Philosophy of Law
• Legal Practice Course
• English Legal System (ELS)
• Legal Skills & Practice
• Medical & Healthcare
• Study & Revision
• Business and Government
• Share This Facebook LinkedIn Twitter

Constitutional and Administrative Law (12th edn)

• New to this edition
• Guide to using the book
• Table of Cases
• Tables of Legislation
• 1. The meaning of a constitution
• 2. Separation of powers
• 3. Rule of law
• 4. The legislative supremacy of Parliament
• 5. Parliament
• 6. The European Union
• 7. The structure of the United Kingdom and devolution
• 8. Primary and secondary legislation
• 10. Constitutional conventions
• 11. Judge-made law
• 12. The royal prerogative
• 13. The nature of judicial review
• 14. The grounds for judicial review
• 15. Judicial review remedies
• 16. Tribunals, inquiries, and the ombudsmen remedy
• 17. Freedoms and liberties in the United Kingdom
• 18. Freedom of expression
• 19. Police powers
• 20. Freedom of assembly and public order

p. 457 18. Freedom of expression

• Neil Parpworth Neil Parpworth Associate Professor in Law, De Montfort University
• https://doi.org/10.1093/he/9780192856579.003.0018
• Published in print: 28 April 2022
• Published online: September 2022

This chapter focuses on some of the laws relating to freedom of expression in the UK. Freedom of expression is widely considered to be a necessary feature in any democratic state. The chapter considers the extent to which restrictions are placed on the freedom of expression in the UK in two particular contexts. It considers laws for the control of obscenity and indecency, the publication of obscene matter, the test of obscenity, defences, powers of search and seizure, and the possession of pornographic images. The discussion also considers that part of the law of contempt of court which relates to restricting the ability of the media to report court proceedings. This chapter is confined to the law relating to obscenity and indecency and contempt of court on the basis that they share the important characteristic of being regulated by both statute and the common law.

• search and seizure
• contempt of court
• restrictions on publication

You do not currently have access to this chapter

Please sign in to access the full content.

Access to the full content requires a subscription

Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice).

date: 07 April 2024

• Cookie Policy
• Privacy Policy
• Legal Notice
• Accessibility
• [66.249.64.20|195.158.225.230]
• 195.158.225.230

Characters remaining 500 /500

• International edition
• Australia edition
• Europe edition

Scotland’s new hate crime law: what does it cover and why is it controversial?

The government insists the law, coming into force on Monday, is needed to protect victims but critics say it limits freedom of expression

A new law to tackle hate crime in Scotland will be implemented on 1 April, and in the past few weeks there have been escalating concerns about how it will be policed and how it might affect freedom of speech. Scotland’s first minister, Humza Yousaf , has hit back at “disinformation and inaccuracy” being spread about its implementation.

What are the aims of the new hate crime law?

The Scottish government says that Hate Crime and Public Order (Scotland) Act will provide greater protection for victims and communities. It is intended to consolidate existing hate crime laws, but also creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. These additional provisions add to longstanding offences relating to stirring up racial hatred, which have been in place across the UK since 1986.

The law, which was passed in 2021 and has taken an unusually long time to come into force, had a rocky passage though Holyrood , with MSPs voting to strengthen freedom of speech provisions after earlier iterations provoked an outcry from religious and arts groups.

Yousaf, who was justice secretary at the time and helped bring the bill through parliament, assured MSPs that it balanced protections for victims of hate crime with safeguarding freedom of expression.

Why does the new law not include misogyny?

There was anger at the time that the bill excluded hatred of women. Even before it was passed, an independent working group, led by Helena Kennedy KC, was established to consider whether adding sex to the list of other protected characteristics or creating a standalone offence would better tackle misogynist abuse.

The group later recommended that the Scottish government introduce a misogyny act to crack down on street harassment and organised online hate. It was included in Yousaf’s programme for government last September but has yet to be published and there is no further information available about its timetabling.

What are the concerns about the new laws and who is raising them?

There is concern that the new measures could be used maliciously against certain groups for expressing their opinions, in particular gender-critical feminists.

The SNP MP Joanna Cherry has said she has no doubt that the new law “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs”.

Some people who disagree with the gender-critical stance of the author and activist JK Rowling have already threatened to lodge complaints about her with Police Scotland from 1 April.

Whether these threats come to pass or not, gender-critical women also raise the prospect of the wider – and hard to quantify – effect of the legislation.

There are worries that allegations of hate crime can be made anonymously – although third-party reporting centres where this can be done have existed for 10 years and are a legacy of the Macpherson report .

The Association of Scottish Police Superintendents has raised serious concerns about the pressure it will put on an already overstretched force, warning that there is “enough anger and hateful bile online to occupy every police officer in Scotland”, given that current guidelines state that all hate crime complaints should be investigated.

The Scottish Police Federation says officers have not received sufficient training in how to mediate such complex territory, citing a “inadequate” two-hour online module.

What assurances have been made?

Yousaf has insisted there is a “very high threshold” for prosecution and a “triple lock” on freedom of expression in the act, including an explicit clause, a “reasonableness” defence, and compatibility with the European convention on human rights.

Adam Tomkins, a former Tory MSP and convener of Holyrood’s justice committee who was closely involved with the passage of the bill in 2021, said: “Asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.”

Tomkins and others have warned that social media postings and some reporting on the act has wrongly suggested that it is criminalising comments that are merely offensive to others.

While many groups covered by the new act welcome the extension and streamlining of the law, some worrythat the focuson the row about transphobia will deter other communities from reporting hate crimes.

What is a ‘non-crime hate incident’ and how does that fit into the picture?

While supporters of the act insist that the bar for prosecution is set high, this sits uncomfortably with the police policy of recording “hate incidents” that do not meet the criminal threshold and are based on the perception of the victim or a bystander.

Last year, freedom of information requests made by the Guardian revealed a gradual increase in the numbers of these non-crime hate incidents being recorded. The Scottish Conservative MSP Murdo Fraser last week threatened the police with legal action after he was logged for a complaint about a social media post in which he stated: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat.”

Although this method of recording has been in place for many years as a means of monitoring community tensions (for example to track the levels of race hate in an area), Police Scotland is now reviewing its procedures after a court of appeal ruling stated that a similar policy in England could have a chilling effect on freedom of expression.

• Scottish politics
• Transgender
• Humza Yousaf

More on this story

Hunt faces Scottish MPs’ revolt over energy firm windfall tax extension

Humza Yousaf ‘naive’ about links to evangelical Christian donor, say rights groups

Higher earners to be taxed more heavily in Scotland to protect public services

Sturgeon refuses to say if she kept pandemic WhatsApp messages

Scotland’s Alba party has its first MSP after Ash Regan jumps ship

Today in Focus Is the SNP’s independence dream fading?

Call to extend Scottish FoI laws to private firms running public services

Humza Yousaf’s wife talks of parents’ desperate plight trapped in Gaza

Most viewed.

A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression

• Show more sharing options
• Copy Link URL Copied!

Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But in the current era of the quick buck, curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs sold around Florence focusing on David’s genitalia.

The Galleria dell’Accademia’s director, Cecilie Hollberg, has positioned herself as David’s defender since her arrival at the museum in 2015, taking swift aim at those profiteering from his image, often in ways she finds “debasing.”

In that way, she is a bit of a David herself against the Goliath of unfettered capitalism with its army of street vendors and souvenir shop operators hawking aprons of the statue’s nude figure, T-shirts of it engaged in obscene gestures, and ubiquitous figurines, often in Pop Art neon.

At Hollberg’s behest, the state’s attorney office in Florence has launched a series of court cases invoking Italy’s landmark cultural heritage code, which protects artistic treasures from disparaging and unauthorized commercial use. The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said.

Entertainment & Arts

Michelangelo’s ‘David’ sculpture at risk of collapse, experts say

Michelangelo’s famous statue of the biblical figure David is at risk of collapse due to the weakening of the artwork’s legs and ankles, according to a report published this week by art experts.

May 2, 2014

“There was great joy throughout all the world for this truly unique victory that we managed to achieve, and questions and queries from all over about how we did it, to ask advice on how to move,” she told the Associated Press.

Legal action has followed to protect masterpieces at other museums, not without debate, including Leonardo’s “Vitruvian Man,” Donatello’s David and Botticelli’s “Birth of Venus.”

The decisions challenge a widely held practice that intellectual property rights are protected for a specified period before entering the public domain — the artist’s lifetime plus 70 years, according to the Berne Convention signed by more than 180 countries, including Italy.

More broadly, the decisions raise the question of whether institutions should be the arbiters of taste, and to what extent freedom of expression is being limited.

World & Nation

Florida principal ousted after parent complaints about Michelangelo’s ‘David’ statue

A Florida charter school principal has been forced to resign after a parent complained that sixth-graders were exposed to Michelangelo’s famous “David” sculpture.

March 24, 2023

“It raises not just legal issues, but also philosophical issues. What does cultural patrimony mean? How much of a stranglehold do you want to give institutions over ideas and images that are in the public domain?’’ said Thomas C. Danziger, an art market lawyer based in New York.

He pointed to Andy Warhol’s famous series inspired by Leonardo’s “Last Supper.” “Are you going to prevent artists like Warhol from creating what is a derivative work?’’ Danziger asked. “Many people would view this as a land grab by the Italian courts to control and monetize artworks in the public domain that were never intended to be charged for.”

Italy’s cultural code is unusual in its scope, essentially extending in perpetuity the author’s copyright to the museum or institution that owns it. The Vatican has similar legislative protections on its masterpieces, and seeks remedies through its court system for any unauthorized reproduction, including for commercial use and for damaging the dignity of the work, a spokesman said.

Massive ‘David’ statue, a replica of Michelangelo’s work, topples at Glendale cemetery

The full-size marble reproduction of the Renaissance artist’s statue falls over and breaks into pieces.

March 11, 2020

Elsewhere in Europe, Greece has a similar law, adopted in 2020, which requires a permit to use images of historic sites or artifacts for commercial use, and forbids the use of images that “alter” or “offend” the monuments in any way.

France’s Louvre museum, home to some oft-replicated masterpieces like the “Mona Lisa” and Venus de Milo, notes that its collection mostly dates from before 1848, which puts them in the public domain under French law.

Court cases have debated whether Italy’s law violates a 2019 European Union directive stating that any artwork no longer protected by copyright falls into the public domain, meaning that “everybody should be free to make, use and share copies of that work.”

The EU Commission has not addressed the issue, but a spokesman told the AP that it is currently checking “conformity of the national laws implementing the copyright directive” and would look at whether Italy’s cultural heritage code interferes with its application.

Hollberg won her first case against ticket scalpers using David’s image to sell marked-up entrance packages outside the Accademia’s doors. She also has targeted GQ Italia for imposing a model’s face on David’s body, and luxury fashion brand Longchamp’s cheeky Florence edition of its trademark “Le Pliage” bag featuring David’s more intimate details.

After Florida school uproar, Italy extends an invitation to parents and students to view Michelangelo’s ‘David’

A Florence museum and the city’s mayor are inviting parents and students from a Florida charter school to visit and see Michelangelo’s ‘David.’

March 26, 2023

Longchamp noted the depiction was “not without irony” and said the bag was “an opportunity to express with amused lightness the creative force that has always animated this wonderful city.’’

No matter how many lawsuits Hollberg has initiated — she won’t say how many — the proliferation of David likenesses continues.

“I am sorry that there is so much ignorance and so little respect in the use of a work that for centuries has been praised for its beauty, for its purity, for its meanings, its symbols, to make products in bad taste, out of plastic,” Hollberg said.

Based on Hollberg’s success and fortified by improved search engine technology, the private entity that is custodian of Florence’s landmark Cathedral has started going after commercial enterprises using the famed dome for unauthorized, and sometimes denigrating, purposes — including men’s and women’s underwear.

So far, cease-and-desist letters have been enough to win compliance without turning to the courts, adding an extra half a million euros ($541,600) a year to revenues topping 30 million euros ($32 million), Luca Bagnoli, president of the Opera di Santa Maria del Fiore, told the AP.

“We are generally in favor of the freedom of artistic expression,’’ Bagnoli said. “When it comes to reinterpreted copies, it becomes a little more difficult to understand where artistic freedom ends and our image rights begin.”

College ends partnership with Florida charter school over the ‘David’ statue issue

A Michigan college will no longer work with a Florida charter school after its principal was pushed to resign due to complaints over teaching about the Michelangelo sculpture.

March 30, 2023

Italy’s cultural heritage code in its current form has been on the books since 2004, and while Hollberg’s cases were not the first, they have represented an acceleration, experts said.

The jurisprudence is still being tested. A court in Venice ordered Germany’s Ravensburger jigsaw puzzle maker to stop using the image of “Vitruvian Man” in the first case to involve a company outside Italy. The ruling implicitly rejected Ravensburger’s argument that the law was incompatible with the EU directive on copyright, lawyers said.

Experts say the aggressive stance could backfire, discouraging the licensing of Italy’s artworks, a source of revenue, while also limiting the reproduction of masterpieces that serve as cultural ambassadors.

“There is a risk for Italy, because you can select a work of art that is not covered by this legislation,’’ said Vittorio Cerulli Irelli, an intellectual property lawyer at Trevisan & Cuonzo in Rome. “In many instances, it is the same for you to use Leonardo’s painting which is in the U.K. or Leonardo’s painting which is in Italy. You just go for the easiest choice.”

Barry writes for the Associated Press. AP writers Nicholas Paphitis in Athens and Thomas Adamson in Paris contributed to this report.

More to Read

California legislators push law change after ruling against family in Nazi looted art case

March 28, 2024

A San Diego museum is selling its buildings. What will happen to the extraordinary art built into it?

March 21, 2024

A battle over a Nazi-looted masterpiece has plunder holders around the world on notice

March 5, 2024

Start your day right

Sign up for Essential California for news, features and recommendations from the L.A. Times and beyond in your inbox six days a week.

You may occasionally receive promotional content from the Los Angeles Times.

More From the Los Angeles Times

A new SoCal show hopes to tap the surprisingly big business of two-actor musicals

April 5, 2024

Review: A dazzling Katerina McCrimmon makes for an authentic Fanny Brice in ‘Funny Girl’

April 4, 2024

There’s no escaping Philip Glass and his piano etudes right now

Playwright Christopher Durang, a Tony winner for ‘Vanya and Sonia and Masha and Spike,’ dies at 75

The government attacks the freedom of speech

3-minute read.

“I do not agree with a word that you say, but I will defend to the death your right to say it.”

— Voltaire, 1694-1778

Holy Week was not a good week for personal liberty as governments throughout the United States engaged in direct and subtle attacks on free speech.

The freedom of speech is unique in American history and ethos. It was the linchpin of the secession of the 13 colonies from Great Britain. It is often claimed at the most distinguishing characteristic between life in the U.S. and all other countries. It has suffered and survived grievous government assaults from the Alien and Sedition Acts of the 1790s to the suspension of habeas corpus during the War Between the States to the Red Scares in the last century to the monitoring of social media today.

This great freedom continuously pushes back at the governments that assault it. The freedom of speech is a value and metaphor for the unique, indefeasible, permanent, natural right to think as you wish, to say what you think, to read what you please, to publish what you say, and to do all this without a government permission slip and without fear of government reprisal.

The freedom of speech is both a natural and a constitutional right. It is expressly guaranteed in the First Amendment. That amendment commands not that Congress grant the freedom of speech but that Congress is prohibited from infringing upon it.

From and after the ratification of the 14th Amendment, federal and state courts have applied the prohibition on congressional infringement to all governments — federal, state and local; and to all branches of those governments — legislative, executive and judicial.

When teaching law students the values of the Bill of Rights, I often began with a curious hypothetical. If the states ratified a constitutional amendment repealing the First Amendment, would the freedom of speech still exist in America? The short answer to that question is: Yes. The longer answer reflects that speech is not just a constitutional right. Because free speech comes from our humanity — a gift of our Creator — we have and can exercise this right whether it is reduced to writing and recognized by the government or not.

Moreover, every person employed by any government anywhere in the United States takes an oath of allegiance to the Constitution, which includes all of its amendments. You’d never know that from events during the past week.

Here is the backstory.

Last week, the State of Texas enacted a law requiring all state schools — from pre-K to graduate schools — to punish speech deemed by officials to be antisemitic. Also last week, the State of South Dakota did the same. The governors of both states proclaimed their desire to protect certain people from the use of words manifesting ideologies based on “intolerance.”

In Oklahoma last week, three FBI agents visited the home of a local activist to talk to her about her social media posts. She taped her encounter with them. When the agents revealed that they lacked a warrant, she asked them to leave. Good for her! She could have called the local police and reported three strangers with guns harassing her on her front porch! Her social media posts are none of the government’s business.

The Texas and South Dakota statutes also suffer from their publicly stated efforts to protect only certain discreet groups. That violates the Equal Protection Clause of the 14th Amendment, which expressly prohibits the states from isolating groups for special protection or for less protection.

Also last week, a justice of the New York State Supreme Court — that’s the trial court in New York — entered a gag order prohibiting former President Donald Trump from criticizing the daughter of the justice. The daughter is a fundraiser for Democratic clients who use the prosecution of the former president in their fundraising solicitations. The daughter has voluntarily entered the marketplace of ideas by her professional work, much of which is aimed at the former president.

Put aside the unseemly appearance of a trial judge signing an order to insulate his own daughter from political criticism by a public figure whom the daughter and her clients publicly criticize; these gag orders are direct assaults on the freedom of speech.

I recognize that I am an outlier here, as most judges who have tried high-profile criminal cases favor the limited use of gag orders to insulate jurors and protect witnesses from influences outside the courtroom.

But the fact remains that gag orders are a direct government assault on the freedom of speech. In Trump’s case, it is exquisitely unfair for the judge’s daughter to use the criminal prosecution of Trump as a fundraising tool while her father — the judge in Trump’s criminal case — has silenced Trump himself from commenting publicly about this.

What ever happened to the freedom of speech?

Each of these events is profoundly unconstitutional as they all amount to the government getting involved in the content of speech. The Supreme Court has ruled consistently since the 1960s that the whole purpose of the First Amendment is to keep the government out of the business of speech. Government may not favor or disfavor speech; and it may not evaluate the content of speech. Thus, it may not encourage or deter or punish speech.

If government could evaluate the content of speech and punish what it characterizes as intolerance or disinformation, we’d have no freedoms remaining. Government is the negation of liberty. It exists by stealing, prohibiting and compelling. Speech is the last bastion against the government’s totalitarian impulses. If the government could punish the speech it hates and fears or the speech its patrons don’t want to hear, we will have no freedoms remaining.

Why do we repose the liberties guaranteed by the Constitution into the hands of those who subvert them?

Andrew P. Napolitano, a former New Jersey Superior Court Judge, has published nine books on the U.S. Constitution. To learn more, visit  JudgeNap.com .

• Election 2024
• Entertainment
• Newsletters
• Photography
• Personal Finance
• AP Investigations
• AP Buyline Personal Finance
• Press Releases
• Israel-Hamas War
• Russia-Ukraine War
• Global elections
• Asia Pacific
• Latin America
• Middle East
• Election Results
• Delegate Tracker
• AP & Elections
• March Madness
• AP Top 25 Poll
• Movie reviews
• Book reviews
• Personal finance
• Financial Markets
• Business Highlights
• Financial wellness
• Artificial Intelligence
• Social Media

A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression

Michelangelo’s “David” has been a towering figure in Italian culture since its completion in 1504 and a defining achievement of the Renaissance. But in the current era of the quick buck, curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets sold around Florence focusing on David’s genitalia. (AP video: by Luigi Navarra)

A detail of Michelangelo’s 16th century statue of David is seen on display at the Accademia gallery, in Florence, central Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

• Copy Link copied

A souvenir bag showing Michelangelo’s 16th century statue of David blowing a bubble gum on sale among other souvenirs in a shop in downtown Florence, central Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

A vendor sells souvenirs of Michelangelo’s 16th century statue of David at a kiosk in downtown Florence, Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

Michelangelo’s 16th century statue of David is seen on display at the Accademia gallery, in Florence, central Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

Souvenirs of Michelangelo’s 16th century statue of David are seen on sale among other souvenirs in a shop in downtown Florence, central Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

People walk past a shop selling souvenirs of Michelangelo’s 16th century statue of David, in downtown Florence, central Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

Cecilie Holberg, the German director of the Accademia gallery walks past Michelangelo’s 16th century statue of David on display at the Accademia gallery, in Florence, central Italy, Monday, March 18, 2024.CMichelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

A vendor sells souvenirs of of Michelangelo’s 16th century statue of David at a kiosk in Florence’s central Piazza della Signoria, Italy, Monday, March 18, 2024. Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs focusing on David’s genitalia. The Galleria dell’Accademia’s director has positioned herself as David’s defender and takes swift aim at those profiteering from his image. (AP Photo/Andrew Medichini)

FLORENCE, Italy (AP) — Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But in the current era of the quick buck, curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs sold around Florence focusing on David’s genitalia.

The Galleria dell’Accademia’s director, Cecilie Hollberg, has positioned herself as David’s defender since her arrival at the museum in 2015, taking swift aim at those profiteering from his image, often in ways she finds “debasing.”

Michelangelo’s 16th century statue of David is seen on display at the Accademia gallery, in Florence, central Italy, Monday, March 18, 2024. (AP Photo/Andrew Medichini)

In that way, she is a bit of a David herself against the Goliath of unfettered capitalism with its army of street vendors and souvenir shop operators hawking aprons of the statue’s nude figure, T-shirts of it engaged in obscene gestures, and ubiquitous figurines, often in Pop Art neon.

At Hollberg’s behest, the state’s attorney office in Florence has launched a series of court cases invoking Italy’s landmark cultural heritage code, which protects artistic treasures from disparaging and unauthorized commercial use. The Accademia has won hundreds of thousands of euros (dollars) in damages since 2017, Hollberg said.

“There was great joy throughout all the world for this truly unique victory that we managed to achieve, and questions and queries from all over about how we did it, to ask advice on how to move,” she told The Associated Press.

Legal action has followed to protect masterpieces at other museums, not without debate, including Leonardo’s “Vitruvian Man,” Donatello’s David and Botticelli’s “Birth of Venus.”

The decisions challenge a widely held practice that intellectual property rights are protected for a specified period before entering the public domain — the artist’s lifetime plus 70 years, according to the Berne Convention signed by more than 180 countries including Italy.

More broadly, the decisions raise the question of whether institutions should be the arbiters of taste, and to what extent freedom of expression is being limited.

“It raises not just legal issues, but also philosophical issues. What does cultural patrimony mean? How much of a stranglehold do you want to give institutions over ideas and images that are in the public domain?’’ said Thomas C. Danziger, an art market lawyer based in New York.

He pointed to Andy Warhol’s famous series inspired by Leonardo’s “Last Supper.” “Are you going to prevent artists like Warhol from creating what is a derivative work?’’ Danziger asked. “Many people would view this as a land grab by the Italian courts to control and monetize artworks in the public domain that were never intended to be charged for.”

People walk past a shop selling souvenirs of Michelangelo’s 16th century statue of David, in downtown Florence, central Italy, Monday, March 18, 2024. (AP Photo/Andrew Medichini)

Italy’s cultural code is unusual in its scope, essentially extending in perpetuity the author’s copyright to the museum or institution that owns it. The Vatican has similar legislative protections on its masterpieces, and seeks remedies through its court system for any unauthorized reproduction, including for commercial use and for damaging the dignity of the work, a spokesman said.

Elsewhere in Europe, Greece has a similar law, adopted in 2020, which requires a permit to use images of historic sites or artifacts for commercial use, and forbids the use of images that “alter” or “offend” the monuments in any way.

France’s Louvre museum, home to some oft-replicated masterpieces like the “Mona Lisa” and Venus de Milo, notes that its collection mostly dates from before 1848, which puts them in the public domain under French law.

Court cases have debated whether Italy’s law violates a 2019 European Union directive stating that any artwork no longer protected by copyright falls into the public domain, meaning that “everybody should be free to make, use and share copies of that work.”

Cecilie Holberg, the German director of the Accademia gallery walks past Michelangelo’s 16th century statue of David on display at the Accademia gallery, in Florence, central Italy, Monday, March 18, 2024.(AP Photo/Andrew Medichini)

The EU Commission has not addressed the issue, but a spokesman told the AP that it is currently checking “conformity of the national laws implementing the copyright directive” and would look at whether Italy’s cultural heritage code interferes with its application.

Hollberg won her first case against ticket scalpers using David’s image to sell marked-up entrance packages outside the Accademia’s doors. She also has targeted GQ Italia for imposing a model’s face on David’s body, and luxury fashion brand Longchamp’s cheeky Florence edition of its trademark “Le Pliage” bag featuring David’s more intimate details.

Longchamp noted the depiction was “not without irony” and said the bag was “an opportunity to express with amused lightness the creative force that has always animated this wonderful city.’'

No matter how many lawsuits Hollberg has initiated — she won’t say how many — the proliferation of David likenesses continues.

“I am sorry that there is so much ignorance and so little respect in the use of a work that for centuries has been praised for its beauty, for its purity, for its meanings, its symbols, to make products in bad taste, out of plastic,” Hollberg said.

Based on Hollberg’s success and fortified by improved search engine technology, the private entity that is custodian of Florence’s landmark Cathedral has started going after commercial enterprises using the famed dome for unauthorized, and sometimes denigrating, purposes — including men’s and women’s underwear.

So far, cease-and-desist letters have been enough to win compliance without turning to the courts, adding an extra half a million euros ($541,600) a year to revenues topping 30 million euros ($32 million), Luca Bagnoli, president of the Opera di Santa Maria del Fiore, told the AP.

“We are generally in favor of the freedom of artistic expression,’’ Bagnoli said. “When it comes to reinterpreted copies, it becomes a little more difficult to understand where artistic freedom ends and our image rights begin.”

Italy’s cultural heritage code in its current form has been on the books since 2004, and while Hollberg’s cases were not the first, they have represented an acceleration, experts said.

Souvenirs of Michelangelo’s 16th century statue of David are seen on sale among other souvenirs in a shop in downtown Florence, central Italy, Monday, March 18, 2024. (AP Photo/Andrew Medichini)

The jurisprudence is still being tested. A court in Venice ordered Germany’s Ravensburger jigsaw puzzle maker to stop using the image of “Vitruvian Man” in the first case to involve a company outside Italy. The ruling implicitly rejected Ravensburger’s argument that the law was incompatible with the EU directive on copyright, lawyers said.

Experts say the aggressive stance could backfire, discouraging the licensing of Italy’s artworks, a source of revenue, while also limiting the reproduction of masterpieces that serve as cultural ambassadors.

“There is a risk for Italy, because you can select a work of art that is not covered by this legislation,’’ said Vittorio Cerulli Irelli, an intellectual property lawyer at Trevisan & Cuonzo in Rome. “In many instances, it is the same for you to use Leonardo’s painting which is in the U.K. or Leonardo’s painting which is in Italy. You just go for the easiest choice.”

Associated Press writers Nicholas Paphitis in Athens, Greece, and Thomas Adamson in Paris contributed to this report.

Ontario court voids unconstitutional parts of panhandling law

Judge ruled law violated presumption of innocence, freedom of expression rights.

Social Sharing

An Ontario judge has struck down sections of the province's panhandling law as unconstitutional, including parts that ban asking people for money while intoxicated or while they are waiting to use an ATM.

The case was launched in 2017 by the Fair Change legal clinic against the Safe Streets Act, the second constitutional challenge against the law that has been in force since 2000.

Ontario's Progressive Conservative government at the time passed the law, a few years after it cut welfare benefits by 21.6 per cent.

The law prohibits soliciting in an aggressive manner, specifying six ways panhandling is defined as aggressive, and it bans soliciting a "captive audience," setting out six locations that meet that definition.

Fair Change argued the law violates several Charter rights, including freedom of expression and the right not to be subjected to cruel and unusual punishment.

Prohibiting panhandling violates rights: Judge

Superior Court Judge Robert Centa did not accept all of the Fair Change arguments, but ruled that most of the ways the law defines aggressive solicitation violate the presumption of innocence, and prohibiting panhandling in certain locations violates freedom of expression rights.

It is not necessarily true that someone who asks for money while intoxicated by drugs is panhandling in a way that could likely cause concern for another person's safety, Centa wrote in the decision.

"I do not accept that a reasonable person would fear for their safety and security if they walked past a person who was sitting cross-legged on the ground, intoxicated by marijuana, smiling blissfully, and holding a sign that said, 'Please spare some change so that my baby and I can get something to eat,"' he wrote.

The other impugned "aggressive" solicitation sections include obstructing someone's path, using abusive language, and walking behind or beside someone while asking them for money.

The court left intact the broader section against soliciting in an aggressive manner — after striking down some of the definitions of what counts as aggressive — and threatening people with physical harm while soliciting.

Maximum fine of $1K for violating law

Centa also upheld a ban on walking onto a street to ask drivers for money, but struck down the other ways the law defined soliciting a "captive audience," including where people are waiting to use an ATM.

"The mere presence of a homeless person soliciting gifts from persons doing certain things at a prohibited site does not, on its own and without more, pose any danger or impediment to the safe use of public space," Centa wrote.

"Soliciting is of fundamental importance to persons in need and has a real social value. Even if the presence of persons soliciting is annoying or even offensive, a blanket ban on all solicitations is not a proportional limit on freedom of expression."

The other "captive audience" provisions that were struck down include someone waiting to use a pay telephone, someone waiting for a taxi or public transit and someone who is on public transit.

• Court hears challenge of Ontario law banning 'aggressive' panhandling
• 'Nobody panhandles by choice': How panhandling bans affect the homeless

The Canadian Civil Liberties Association (CCLA) said it is a significant victory in the fight against the law's limits on the ability of poor people to ask their fellow citizens for help.

"This decision affirms that the Safe Streets Act is an unconstitutional restriction of the freedom of unhoused and low-income people who seek donations from the public in order to survive and live with dignity," Harini Sivalingam, the CCLA's director of the equality program, wrote in a statement.

Violations of the law come with a maximum fine of $500 for the first offence and a maximum fine of $1,000 or imprisonment for up to six months for subsequent offences.

Fair Change's arguments cited a 2011 research paper that found the Toronto Police Service issued 67,388 tickets under the Safe Streets Act from 2000 to 2010, totalling more than $4 million. Only $8,086.56 was collected, Fair Change said.

Related Stories

• Advocates blast Barrie city council for greenlighting ban on donations to people experiencing homelessness

• Share full article

Advertisement

Supported by

Guest Essay

Hong Kongers Are Purging the Evidence of Their Lost Freedom

By Maya Wang

Ms. Wang is the acting China director for Human Rights Watch.

“What should I do with those copies of Apple Daily ?”

Someone in Hong Kong I was chatting with on the phone recently had suddenly dropped her voice to ask that question, referring to the pro-democracy newspaper that the government forced to shut down in 2021.

“Should I toss them or send them to you?”

My conversations with Hong Kong friends are peppered with such whispers these days. Last week, the city enacted a draconian security law — its second serious legislative assault on Hong Kong’s freedoms since 2020. Known as Article 23 , the new law expands the National Security Law and criminalizes such vague behavior as the possession of information that is “directly or indirectly useful to an external force.”

Hong Kong was once a place where people did not live in fear. It had rule of law, a rowdy press and a semi-democratic legislature that kept the powerful in check. The result was a city with a freewheeling energy unmatched in China. Anyone who grew up in China in the 1980s and 1990s could sing the Cantopop songs of Hong Kong stars like Anita Mui, and that was a problem for Beijing: Freedom was glamorous, desirable.

When Britain handed Hong Kong back to China in 1997, the city’s people accepted, in good faith, Beijing’s promises that its capitalist system and way of life would remain unchanged for 50 years and that the city would move toward universal suffrage in the election of its leader.

Not anymore. Now Hong Kong people are quietly taking precautions, getting rid of books, T-shirts, film footage, computer files and other documents from the heady days when this international financial center was also known for its residents’ passionate desire for freedom.

I used to joke that I never needed to watch dystopian series like “The Handmaid’s Tale” or “The Hunger Games.” As someone who has lived and worked for years in Hong Kong and China, I know what it feels like to descend into deepening repression, remembering our free lives.

As Beijing kept breaking its promises over the years, Hong Kongers took to the streets to defend their freedoms nearly every sweltering summer. In 2003, demonstrations by half a million people forced Hong Kong’s government to shelve an earlier attempt to introduce Article 23. In 2014, hundreds of thousands peacefully occupied parts of the city for 79 days to protest moves by Beijing to ensure that only candidates acceptable to the Communist Party could run for election as Hong Kong’s top leader.

But Hong Kongers were unprepared for the coming of President Xi Jinping of China, the architect of another frightening crackdown far away on the mainland.

In 2017, I started to receive reports that Uyghurs and other Turkic Muslim minorities were disappearing into “ political education” camps in the northwestern region of Xinjiang . People who had managed to get out told me how Xinjiang’s borders were suddenly closed, escape was becoming impossible and speech or behavior that was once acceptable — like simply praying at a neighbor’s house — could get you jailed. Officials would enter homes to inspect books and decorations. Uyghurs were discarding copies of the Quran or books written in Arabic, fearing they would be disappeared or jailed for insufficient loyalty to the Chinese Communist Party. One man told me he had burned a T-shirt with a map of Kazakhstan on it — many of Xinjiang’s inhabitants are ethnic Kazakhs with family members across the border — because any foreign connection had become risky.

As these stories of repression and fear emerged from Xinjiang, they were instantly recognizable in Hong Kong. In 2019, the city’s government proposed a bill that would have allowed extradition to China. Fear and anger — and the feeling that Hong Kong people needed to make one last stand while they could — exploded in months of protest .

One of the 2019 protest slogans — “Today’s Xinjiang is tomorrow’s Hong Kong”— sounded to me like hyperbole at the time. Now, five years later, it feels prescient. Today, it’s Hong Kongers who are disposing of dangerous books and T-shirts. Some people I know have quietly left an online chat group that includes foreign organizations and individuals; such contact could put the group’s Hong Kong members at risk. Others are quitting social media; tens of thousands have already left Hong Kong.

After Beijing imposed the National Security Law in Hong Kong in 2020, it used the law to decimate the city’s pro-democracy movement by jailing its leaders. More than 1,000 people remain in jail. Fearful of arrest, independent labor unions and media outlets disbanded. Libraries pulled hundreds of books off shelves. Films and plays were censored. Civil servants can no longer stay neutral and are forced to pledge allegiance to the government.

Both the National Security Law and Article 23, passed last week, are broad, vague and blunt instruments intended to critically wound civil liberties and transform institutions that protected people’s freedoms into tools of repression. Under Article 23, anyone found guilty of participating in a meeting of a “prohibited organization” or who discloses “unlawful” and vaguely defined “state secrets” could face a decade behind bars.

Beijing has couched this repression in terms like “the rule of law,” and visitors to Hong Kong often fail to recognize the transformations taking place beneath the enduring glitz of the city. That leaves the rest of the world detached from the reality on the ground — unable to sympathize with Beijing’s victims or to feel their breathlessness under this growing weight.

One acquaintance in Hong Kong told me that people he knew had become blasé about their sudden loss of freedom and were just coldly watching the destruction of the city and what it stood for. But others, toughened over the years, still express hope and defiance. The solidarity forged through nearly two decades of widespread activism won’t die easily. A Pew Research Center survey this month found that more than 80 percent of Hong Kongers still want democracy, however remote that possibility looks today.

The Chinese government wants the world to forget about Hong Kong, to forget what the city once was, to forget Beijing’s broken promises. But Hong Kong’s people will never forget. Don’t look away.

Maya Wang (@wang_maya) is acting China director for Human Rights Watch.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .