Freedom of Expression

by

Mark J. Richards

• LAST REVIEWED: 27 November 2023
• LAST MODIFIED: 27 November 2023
• 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. 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.

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, 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.