Freedom of Speech

Abstract: Freedom of Speech is cherished by many, almost with religious zeal. But how useful is freedom of speech? This article argues that there are inconsistencies and weaknesses in the concept that do not make sense when viewed from the perspective of optionality. By comparison, the concept optionality is more positive and does not call for a legal framework for its implementation. This article is part of a series of articles in which the concept optionality is compared with other concepts.

A. A Question of Balance?

Many are still celebrating the US Supreme Court's recent rejection of censorship on the Internet. But such freedom of speech is still an illusion in many other countries. At the recent meetings of the Association of South-East Asian Nations (ASEAN), the Malaysian Prime Minister Mahathir Mohamad called for the 50-year-old United Nations (UN) Declaration of Human Rights to be reviewed on the ground that it was formulated by the superpowers which did not understand the needs of poor countries. Of course, two of these so-called superpowers, Russia and China, have never been staunch supporters of civil rights. In fact, the push for a review was strongly backed by Indonesia, the Philippines and China. Malaysian Foreign Minister Abdullah Badawi said: Sometimes if there is too much freedom exercised then democracy could be destroyed. Indonesian Foreign Minister Ali Alatas argued the UN Declaration needed to reflect a better balance between individual civil and political rights and social, economic and cultural rights.

The US Under-Secretary of State, Stuart Eizenstat, replied that the UN Declaration represents universal values against discrimination on the basis of race, religion, freedom of speech and assembly.

So, is freedom of speech a universal, unalienable right, or is freedom of speech merely an illusive slogan constructed by politicians to get more votes?

B. Freedom of Speech an inalienable Right?

Looking at its track record, it is hard to recognize freedom of speech as a non-political principle. Invariably, freedom of speech calls for a protective legal framework, backed up by police, prisons and military might, which by definition are dictatorial in character. Isn't there an inconsistency in ending a dispute by means of military intervention on the grounds of freedom of speech? Is freedom of speech merely a legal concept, is it up to the politicians of the day to define freedom of speech? In other words, how inalienable is freedom of speech?

In the US, freedom of speech is protected by the Bill of Rights attached to the Constitution. The US is regarded by many as a bastion of freedom. However, vexatious litigation makes it hard for anyone to speak out. Defendants may win their case in court but still face huge legal costs. A recent study by the Research Institute of Asia and the Pacific ranks both Australia and Japan higher in its freedom index. Most of the final data used in the study was derived from the respected Freedom House, established by Eleanor Roosevelt in 1941. The study ranks the US higher in civil rights than Japan, but ranks Japan higher than the US in the final index due to the US lower score for repressive actions on journalists. Since Australia ranks first on all categories, it makes sense to look a bit closer at the Australian situation.

Australia does not have a Bill of Rights attached to its Constitution, yet the High Court has strongly protected freedom of speech during the 1990s. The High Court has argued that the freedom to express oneself and to communicate on political issues is implied in the democratic system set out in the Constitution. The High Court did not base its rulings on a right to freedom of speech, because there was no such right specified in the Constitution. The High Court based its rulings on something that was not specified as such in the Constitution. As some argue, the High Court based its rulings on higher, overriding principles. If so, the High Court did not so much base its rulings on the principle of an inalienable right to freedom of speech, but on principles such as logic and sense, for the sake of a coherent and consistent Constitution. By the way, the Australian Government felt threatened by such an 'adventurous' High Court and its recent appointments to the High Court were motivated by a nostalgia for black-letter-law. But the conclusion here is that it was not freedom of speech that stood as an overriding principle.

C. Does Freedom of Speech prevail within the Law?

If freedom of speech is of such an overriding importance, why is it that, even in countries such as the US and Australia, people are convicted for the things they say? People are convicted for inciting to crime, instructing for crimes to be committed, conspiring, planning and verbally assisting in criminal activities. People are convicted for swindle and fraud, blasphemy, offending the feelings of other people, lese majesty, for insulting an officer on duty, for displaying indecent pictures, for pornography, for defamation, libel, racist remarks, for verbaling, verbal bullying, for soliciting sex and for sexual harasment, for swearing, for perjury, for discrimination, for contempt of court. The list goes on and on. Is all this not a restriction of freedom of speech? What is the difference between criminal speech and other speech? Where is the border between improper use of intellectual property and the use of information as protected by freedom of speech?

The points is that, if freedom of speech is merely a legal concept, it is not even sacrosanct within the law. The law gives prevalence to punishing crime over freedom of speech.

D. Freedom of Speech for Politicians only?

Some will argue that, as in the Australian situation, freedom of speech should be interpreted as the right of political communication, i.e. the right of one person to express a political opinion and the right of other persons to be informed about this. In other words, freedom of speech is interpreted broadly to include not only speech, but also print, gestures and other forms of expression. On the other hand, freedom of speech is narrowed down to politics.

The problem is, who decides what is politics and on what basis? What is an acceptable political opinion? Should people like Hitler be allowed to express what they regard as political ideas? Or should the law prohibit racist remarks? Where should the line be drawn? Note that Hitler was elected with a huge majority in a multi-party democracy.

Late last year in Brisbane, a poet was charged with obscenity and was fined in the Brisbane Magistrates Court for publicly exhibiting a copy of his 14-line, sonnet style poem F...... Words. According to the prosecution, the poem referred to the sexual act, contained the words f... and cock and was offensive to the sexual modesty of the average man. But did anyone really notice this poet before his arrest? The newspaper reports did not spell out the poem, few appeared interested. What made the case interesting was that the poet was convicted for expressing words. The noteriety was for the politics behind the case, not for the beauty of his poem. Indeed, the fact that the poem appeared to challenge the law automatically made it political in character, yet freedom of speech was not respected in this case.

E. The Government silences Dissident Views

Is the way the Government issues licences to broadcasters not a political act that prevents those who disagree with such a system to be heard? More generally, the way society is organized by the Government expresses a specific political opinion. Non-conforming opinions such as libertarians, anarchists and communists are silenced by default. So, how selective is this right for people to express their political opinions? More generally, can a society that enforces one specific law upon all, honor freedom of speech? Is the fact that the law forces everyone into a single straightjacket not in contradiction with the concept freedom of speech? Conversely, does freedom of speech, as a concept that is part and parcel of the legal system, fail on the grounds of logic and sense?

F. Conclusions

Freedom of speech is a concept that is popular. However, this popularity is for a large part due to support by the established media. It is the law that gives the established media their privileged position. Consequently, the media are supportive of the law in general and devote a lot of attention to the politicians who happen to be in power. The support of the media for freedom of speech is in fact a support for the current legal system. Freedom of speech is not so much a civil right, rather it is a dialogue between the media and politicians. Freedom of speech has little to offer to those who disagree with this system and who seek to escape the wrath of the Government. While freedom of speech is preferable to censorship, such concepts are merely two sides of the same coin. Instead, we prefer optionality!

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