What is the Logical Basis for Reasonable Limitations on Free Speech?
One man’s freedom ends where another’s begins
Free speech may be conflicting with the interests of the state
Free speech may affect national security
The undeniable importance of protection of the spirit of tolerance and coexistence among different communities and ethnicities
Free speech may cause erosion of religious harmony on massive scale
Unbridled free speech may give rise to rebellion or civil disobedience
Infringement of right of privacy
Contempt of court
Threat to objectivity in courts’ proceedings
Infringement of copyrights
A threat to moral values
Right of Free Speech in International Law
Article 19 of UNDHR
Article 19 of ICCPR
Freedom of Speech and Freedom of Religion
Freedom of speech is a basic right that is universally acknowledged. However, this right is not absolute and must be exercised within certain limitations as unbridled free speech can impinge on the rights of others.
There are no two opinions on the fact that free speech is the most sensitive among the basic human rights in the modern world. It is not only recognized in every state, but is also protected by the constitution of almost every state. Besides, the right to free speech and expression is also indispensable for the smooth and proper functioning of democracy. However, with the development of strong and assertive media across the globe, especially the electronic media and social media like Facebook, Twitter etc., a new debate has emerged whether the right to free speech is absolute or is to be exercised within certain limitations. There is a general consensus among the legal theorists and political philosophers that there should be certain reasonable limitations on free speech and expression in order to maintain social harmony. Although there are differences of opinion regarding the extent and breadth of the limitation in the constitutions of different states, but there seems to be an agreement on the fact that free speech is not an absolute right and must be exercised with certain restrictions as unbridled free speech has a fat chance to impinge on the rights of others.
The right to free speech and expression should be practised within certain parameters. Needless to say, its exercise should be accompanied with certain responsibilities. If exercised recklessly, it can unleash a host of socio-economic and political implications for the society. It would be quite pertinent to explore the rationale behind limitations on free speech.
Man is a social animal. He lives in a society. The rights and interest of persons vary greatly and there is a big chance that in certain circumstances, they may be at odd with each other. Therefore, it is of utmost importance that people must be allowed to pursue their interests and enjoy their rights in such a manner so as not to affect the rights of another. The right of free expression is a freedom and the boundary to that freedom is the point when it encroaches upon the rights of another. Simply speaking, one has a right to speak whatever one wants. But another person also possesses a right of reputation. It can be inferred that the right of free speech evaporates at the point where it unjustifiably starts interfering with the right of reputation of another. Briefly speaking, there is a need to maintain balance between varying and conflicting rights of persons in order to ensure social harmony in the society.
Similarly, the right of free speech, if allowed unrestricted, may affect the right of a very important legal entity, i.e. State. As the saying goes “interest of state is the supreme law”. Nothing is more important for a society than the maintenance of its social order and harmony. The free speech and expression has the capacity to incite or cause violence, especially if expressed through the medium of mass communication. Hence, in this case, it is legitimate for the state to place certain restrictions on free speech and may regulate the content on the media. However, it is equally important for the state not to be over-enthusiastic in regulating or in interfering in the freedom of media. Again, there is a need for a balanced approach on the issue so that both interests should remain meaningful.
In addition to inciting violence and aggression, unbridled free speech may seriously affect national integration and can jeopardise state security. In these circumstances, states should be even more vigilant and on guard in averting the dangerous repercussions of free speech. Many ethnic and racial communities may together constitute the population of a state. It is necessary for maintenance and promotion of social order in a society that the government regulates and obliterates the calumny of one group against the others.
More importantly, limitations on free speech are necessary in order to hamper the disastrous spread of hate speech. Such limitations on right of free speech are recognized almost universally so that hate speech against other racial and ethnic communities and religious groups could be contained. In other words, world population is composed of many races and ethnicities and hating or belittling any person because of his belongingness to a specific race or ethnicity is universally condemned and discouraged. With the rapid development of modern means of communications, the interaction between the individuals of various backgrounds is taking place at accelerated place. Thus, it is exceedingly important to at least tolerate each other, if not, to love one another. It is natural for a man to be proud of his nationality or ethnicity. Thus, any racial or ethnic comment may lead to serious emotional stress and disorder, if not more. Hence, it is quite logical that the right to free speech should be exercised within certain parameters in order to protect the spirit of tolerance and coexistence among different communities and ethnicities.
Similarly, individuals are very sensitive to their religious beliefs and opinions. There is no denying the fact that if free speech is promoted on unbridled lines, it may result in severe violations of religious rights of people, jeopardizing peace on unimaginably large scale. This is why free speech making fun of religion, and religious belief is outlawed in many countries. The Muslim countries enforce this restriction strictly. Although the importance of placing limitations on hate speeches aiming at defaming the religion is enormous, yet many countries especially the European ones are averse to the idea of placing any limitation on the subject. The recent tirade of many newspapers across the Europe against Islam and its Prophet (PBUH) as well as attack on the French satirical magazine, Charlie Hebdo is a testimony to the fact that placing reasonable restrictions on free speech is exceedingly necessary to maintain peace in the social fabric.
In the same way, unbridled free speech has big chance to stir rebellion or civil disobedience in a country. This logically explains the fact why the speech aimed at the stirring rebellion or civil disobedience is prohibited, in fact, a punishable offence ir many jurisdictions. In any democratic country, the right to criticize government for its flawed policies is considered as a basic political right. However, there is a difference between chastising a government and making seditious remarks against the state. The former is perfectly legal and, in fact, is encouraged in successful democracies to keep the government on track through public accountability. However, calling the state as oppressive and unjust and inciting people, to overthrow the government cannot be justified or allowed. Against this backdrop, it is indispensable to place certain limitations on the right of free speech.
Likewise, people are sensitive to comments concerning their own personalities. It is not hard to infer that scathing and harsh remarks may cause severe emotional distress and anguish for people. This is why the right of free speech cannot be exercised for unleashing uncalled for tirade against another person. Every person has the right that his honour and reputation should not be harmed unjustly. This explains the fact why many jurisdictions have declared defamation as civil wrong as well as criminal offence. However, this does not mean that any fair comment on another which may result in the loss of reputation is defamation. There should be difference between fair and truthful comments and those concerning defamation and severe erosion of reputation. Briefly speaking, placement of reasonable limitations on free speech is necessary to stymie the utterly prejudicial and blatantly defamatory statements so that individuals could be made immune to the disastrous effects of such statements.
In the same way, unhindered free speech may also trample people’s right to privacy. With massive growth in means of communication in the current era, it is all the more important that free speech should be exercised within reasonable parameters in order to retard any unlawful incursion in the privacy of other people. Besides, intrusion in the private life of another is not only prohibited and unjustified but is also an offence in most of the countries. The fact that the rights of various persons may overlap rather conflict with one another necessitates the placement of logical restrictions on the wielding of unrestricted right to free speech.
In addition to violation of right to privacy, unhampered free speech is also likely to result in contempt of court. Judiciary is one of the main pillars of the government in a democratic state. Therefore, the sensitive nature of the judicial work makes it imperative to place reasonable restrictions on the free speech aiming at criticizing the judicial work. Again, it does not mean that fair comments can be made on judicial judgments. However, the scope of free speech in the case of judicial decisions is considerably narrow than all other limitations. This is because judiciary must remain independent and beyond the scope of criticism so that it could not get influenced by public opinion while deciding the cases. Needless to say, unhampered free speech may lead to emergence of public opinion which could curtail the element of objectivity in the court’s proceedings. Against this ackdrop, it is imperative that free speech should come under the ambit of certain lim.tations so that the phenomenon of public opinion leading to parallel ‘People’s court could be effectively checked so as not to curb objectivity in courts’ judgments.
Furthermore, unbridled free speech may give rise to the tradition of infringement of copyrights. In order to curtail this tradition, it is necessary that there should be prohibition on using or expressing the speeches owned by others. This is only possible when there are certain restrictions on the freedom of speech. Limitations in this direction are even supported by the law in majority of the countries. Briefly speaking, unhampered free speech has huge risk of promoting the culture of using a copyrighted material without the consent of its true owner. Therefore, it is imperative that free speech should be accompanied with certain restrictions.
Last, but not the least, if free speech is wielded without any limitations, it may result in severe erosion of moral values in the society. Against this backdrop, it is all the more important that there should be censorship of the material that is deemed to be offensive to public morality. This is why, in many Asian countries, there is a prohibition to display obscene and pornographic movies, literature and speeches. Pakistan Telecommunication Authority (PTA) has also blocked many international websites that display pornographic material. There is no denying that this limitation is of utmost importance for upholding public morality and social conscience.
At this stage, it would be quite relevant to examine the right of free speech in International Law. The right of free speech is provided in many international treaties and instruments. The first notable international instrument is the officially non-binding the “Universal Declaration of Human Rights” adopted by the United Nations in 1948. Article 19 of UDHR specifically deals with the question of free speech. It provides that the right to free speech is a basic human right and must be promoted as such. It does not mention any limitation that could be placed on the exercise of the said right. However, the explanation of such omission can be found from the fact that it was a non-binding instrument and an expression of the desire of world community to uphold various basic human rights as it was still recovering from gross human rights’ violations committing during the World War II.
The next important instrument dealing with the question of free speech is the “International Covenant on Civil and Political Rights” passed under the auspices of United Nations in 1966. Unlike UNHR, ICCPR is a legally binding instrument. Here too, Article 19 deals with the question of free speech. The language employed in this Article is similar to the one used in UNHR, however, with a notable addition of recognizing reasonable limitations that the member states may place in their respective jurisdictions in accordance with their political and social conditions.
After observing the place of free speech in International Law, it is imperative to analyse free speech against the backdrop of freedom of religion. At first, it looks that freedoms of speech and religion are at odd with each other. This, however, is not exactly the case. Freedoms of speech and religion complement each other at many places. In fact, the freedom of religion cannot properly be exercised without having the freedom of speech. Thus, in any country, inhabited by the followers of two or more religions in somewhat equal proportions, it is the presence of freedom of expression that promotes the enjoyment of freedom of religion. In other words, religious obligations and duties cannot be performed without some kind of formal expression. Hence, in most cases, both rights support and complement each other and this aspect of the issue is normally ignored by many commentators.
It is, in fact, hate speech rather than free speech which is conflicting with the freedom of religion. Free speech devoid of any obligations is likely to turn into hate speech. It is in this sense that there should be limitations on free speech so as not to turn it into hate speech. This is exactly what has happened recently. The unabashed bashing and mockery of the religions of the world in general and Islam in particular by the European newspapers have stirred serious emotions throughout the world. The blasphemous cartoons of Holy Prophet (PBUH) published in the various newspapers of Europe have resulted in the eruption of protests often violent, in the Muslim countries. The European leaders have brushed aside the demand of Muslim countries to issue an apology over the publication and a declaration that such like publications would not be made in future. This has resulted in a widening of the gulf between Islam and West. Consequently, we have witnessed a deadly attack on the French magazine, Charlie Hebdo. This is not a good omen for the maintenance of international peace and harmony. It is important to note that defamation of Islam by Western newspapers could trigger an all-out war between Islamic states and European countries. Already the gulf between Islam and West is enormously wide and many in the Islamic countries perceive western war on terror as a war against Islam. It is, therefore, important to recognize Muslim sensitivities regarding religion and giving it due consideration by the Western nations. The tirade that hurt the emotions of more than a billion people cannot be justified on the pretext of free speech. Hence, it is necessary that free speech should have limitations.
All the discussion drives us to the conclusion that the right of free speech is not an absolute right and must be exercised within reasonable restrictions. Where there is a right, there is a responsibility. Rights come with responsibilities. Hence, it is imperative that one should have knowledge of the impacts of what he says or utters. Needless to say, freedom of speech without such knowledge proves a double-edged sword. If on one hand, it is the bedrock of vibrant democracy, promoting religious freedom, right to equality, right to information leading to transparency; while on the other, its reckless exercise may also jeopardize social peace and harmony by aggravating violence and anarchy. Therefore, it is imperative that freedom of speech must be enjoyed within reasonable limitations.