What Are Human Rights? (35): Freedom of Expression is Freedom of What Exactly?

Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.

And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.

The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:

  • some non-linguistic means of expression, such as visual art
  • some forms of protest such as the burning of a draft card, a flag or a cross
  • pornography
  • the display of symbols (e.g. a swastika)
  • etc.

These types of expressive actions can also claim protection in certain circumstances.

So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.

On the other hand, some actions that are unmistakably speech – such as hate speech, incitement etc. – are often justifiably excluded from the protection of the right to free speech.

Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.

Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.

Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.

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