Freedom of Expression

by

Mark J. Richards

• LAST REVIEWED: 12 May 2017
• LAST MODIFIED: 30 July 2014
• DOI: 10.1093/obo/9780199796953-0105

Introduction

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. Contemporary free expression issues arising under international law include commercial speech, hate speech, media, homosexuality, and religion. The two most prevalent issues of the past decade have been anti-terrorism measures and the Internet. 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.

Textbooks

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 and is especially attentive to the ECHR. The author’s policy focus is especially insightful regarding contemporary legal policy issues such as the Internet, broadcasting, and economic regulation. Textbooks in international human rights law typically have a chapter devoted to freedom of expression. Boyle 2010 provides a comprehensive overview of freedom of expression, including freedom of thought, religion, association, and assembly. Boyle’s approach is analytic and explanatory, and he provides extensive citations to case law, UN documents, and, to a lesser extent, academic journal articles. 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. See also Human Rights: Textbooks. Hare and Weinstein 2009 is rich with international law content and would be an excellent supplementary text. The book contains more than thirty chapters written by a wide variety of scholars and encompasses detailed treatment of critical international law topics such as expression as a universal right, extreme speech under various human rights conventions, hate speech, incitement to religious hatred, bans on religious dress, and Holocaust denial. Similarly, 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.

• Boyle, Kevin. “Thought, Expression, Association, and Assembly.” In International Human Rights Law. 1st ed. Edited by Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris, 257–279. Oxford: Oxford University Press, 2010.

  Provides a broad overview 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.

• 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.

  DOI: 10.1093/acprof:oso/9780199548781.001.0001

  For specific chapters covering extreme speech in international law, see Dworkin 2009 and Malik 2009 (cited under Normative Justifications), Fraser 2009 (cited under Internet and Mobile-Based Communication), Finnis 2009 and McGoldrick 2009 (cited under Religion), and Cram 2009, Hare 2009, and Whine 2009 (cited under Hate Speech and Defamation of Religion).

• 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.

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

  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.