Lesson 6: Specific Rights
We shall now examine a number of human rights to determine how they have been interpreted and applied. In this Lesson, we shall consider free speech/expression and the prohibition against torture.
Session 6.1 - Free Speech
Prior to examining the international human right to free speech, it is worth considering the grounds for why such a right exists. These grounds will serve to elaborate and clarify the human right and thus merit consideration throughout the following session.
One ground is the notion that some form of truth can be achieved throughout society. If all individuals can express themselves freely, the truth regarding ideas and comments will eventually emerge. Another ground is that individuals are now allowed to take part in the democratic process. People may express themselves and assert opinions thereby contributing and participating in the democratic process. Closely linked to these two grounds is the notion of a marketplace of ideas. That is, a market exists whereby individuals assert their ideas and opinions in public to allow some understanding to develop and emerge. Finally, on a more individual oriented approach, there is the ground of communicative integrity. Self-fulfillment for the individual and autonomy as a strong basis for democracy would indicate that one must also be able to express themselves.
With these grounds in hand, you should look at Article 19 of the ICCPR simply as a means of discerning the international human rights approach to free speech. Note that the first section refers to individual opinions that know no bounds. That is, aside for the stated limitations that we shall consider, the right is rather open-ended, with a view towards encouraging individuals to harbor and express their opinions.
The limitations are important however given the possibility for all forms of expression and interaction within society. The third paragraph refers to limitations that we have considered in the previous session, specifically national security, public order, health, and morals. Examples of these forms of limitations within the free speech context are interesting and merit consideration.
The notion of health and free speech can derive from commercial free speech, for example advertising. Thus, while making a claim about a product, there still must be some form of oversight regarding the claims being made, especially when involving health issues. Similarly, adverts can be curtailed in the interest of certain social sectors, like cigarettes adverts near a school. Public morals are a trickier issue. Here we can consider the notion of a margin of appreciation as developed under the ECHR. That is, society might have specific principles that would bar free speech where it would insult certain individuals. Clearly this is a narrower understanding of free speech than found in for example the US, where free speech is very rarely limited. Thus, the notion of hate speech, whereby a person might desire to berate an ethnic group or assert racial views, in the international human rights system that would not be allowed; the same cannot be said about the US.
Finally, national security raises rather interesting issues in the free speech context, especially when accounting for ethnic groups asserting their rights or nationalist movements desiring to create their own state or region. The issue of free speech in such a context also relates to the proportionality aspect discussed in the previous session. Thus, it must be prescribed by law, with a proper and legitimate aim of the government, such as to uphold public order. Furthermore, the limitation must be imp0lemented in a proportionate manner to the desired end, such as limiting public announcements from nationalist movement where chaos and rioting might ensue. In light of the importance of free speech and the safeguards imposed on the right, international human rights generally uphold free speech claims and impose a narrow understanding of the limitations, thus creating a higher threshold for the state in limiting free speech.
