What Are Human Rights? (54): The Scope and Coverage of Rights, As Exemplified by Free Speech

It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.

So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:

  1. Who’s protected by a right? And whose activities are restricted by it?
  2. What types of actions are protected by a right, and to what extent? Where is the line between protected actions and legitimate restrictions on actions?
  3. Which obligations does a right impose on whom?

Let’s try to answer these questions by way of the example of the right to free speech.

1. Who’s protected by the right to free speech? And whose activities are restricted by it?

1.1. Who’s protected?

Both speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.

One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.

Other groups that can legitimately claim protection of their speech are

  • foreigners: there’s no good reason to assume that foreigners residing within a country’s jurisdiction should not enjoy the same speech rights as citizens (the same isn’t necessarily the case for all human rights)
  • future generations: current generations shouldn’t act in ways that restrict the freedom of speech of future generations
  • companies, etc.

1.2. Whose activities are restricted?

A list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech – like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.

2. What types of actions are protected by the right to free speech, and to what extent? And which are legitimate restrictions on actions?

The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.

On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.

The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).

Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.

The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).

Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).

Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.

3. Which obligations are imposed on whom?

A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.

Similar arguments can be made for most other rights.

PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:

A related post on the dimensions of human rights is here. More on free speech here.

Limiting Free Speech (46): Lies and False Statements of Fact

Should lies and false statements of fact be protected by free speech laws, or can the speech rights of those who intentionally lie be limited in some cases? The US Supreme Court believes the latter is true, somewhat surprisingly given the often quasi-absolutist nature of First Amendment jurisprudence in the US. In Gertz v. Robert Welch, the Court claimed that

there is no constitutional value in false statements of fact.

There are some obvious problems with this exception to free speech. First, it can’t work unless it’s possible to distinguish real lies from false statements of fact that are simple errors. This means it must be possible to determine someone’s intentions, and that’s always difficult. However, one could claim that a person’s speech rights can only be limited on account of lying when his or her intentions are clear.

That would save the exception, but it wouldn’t undo some of its harmful consequences. People who speak in good faith may still be afraid that their speech will unwittingly come across as false, without their good intentions being absolutely clear. Hence, they may fear that they will run afoul of the law, and limit their speech preemptively. The lies exception to freedom of speech has therefore a chilling effect, an effect which is enhanced by the fuzzy nature of the difference between facts and opinions.

Given these problems with the lies exception to free speech, how could we instead argue in favor of free speech protection for lies and knowingly false statements of fact?

One rather ironic way to do it is to appeal to the metaphor of the marketplace of ideas: free speech is necessary for the pursuit of truth (or, in a weaker form, for the improvement of the quality of our ideas). John Stuart Mill has the canonical quote:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

As such, this doesn’t really justify the acceptance of expressions of lies. If we need lies to see the truth more clearly, you could also say that we need evil to see the good more clearly, and few I guess would accept the latter statement. However, if we interpret this quote liberally (pun intended), we may get somewhere. We could argue that someone’s lies can motivate others to search for, investigate and disseminate the truth. For example, I think it’s fair to say that holocaust deniers have done a lot for holocaust education. They have given teachers and researchers a hook.

Another reason why we wouldn’t want to prohibit lying, at least not across the board, is the fact that lies are often necessary for the protection of human rights. This is the case that’s made in jest in the cartoon on the right, and is also the origin of the rejection of Kant’s claim that we shouldn’t lie to the murderer inquiring about the location of his intended victim. (I have an older post about the usefulness of lying here).

Obviously, nothing said here implies that lying is generally beneficial or that it should be welcomed and protected whatever the circumstances. If lying becomes the norm, we will most likely lose our humanity. In the words of Montaigne, “we are men, and hold together, only by our word” and our civilization and systems of cooperation would come crashing down if we can’t generally trust each other. However, the general albeit not exceptionless moral good of telling the truth doesn’t translate into a right to be told the truth or a legal duty to tell the truth (and to shut up if we can’t). Mortality and human rights don’t completely overlap.

If lying were to become the normal habit, free speech would lose its meaning. We have free speech rights precisely because we want to share information, opinions and beliefs, and because we want to learn and pay attention to verbal assertions. There has to be some level of general trust that people speak their minds rather than the opposite. Otherwise it’s better if there’s no speech at all, and hence also no right to free speech. Hence, the free speech defense of lying has to be limited somewhere.

That is why, despite the fact that in general there shouldn’t be a right to be told the truth or a legal duty to tell the truth, we do want some cases in which there is such a right and such a duty. Lying is legitimately prohibited in the case of libel, of witnesses testifying under oath, of someone impersonating a doctor etc. But those are cases of different rights having to be balanced against each other: the free speech rights of the liars against the rights of those suffering harmful consequences when people lie (consequences such as bad medical treatment, miscarriages of justice etc.). The duty of government officials and elected politicians to tell the truth is based on the requirement of democratic transparency, and is therefore also a case of balancing rights: democracy is a human right, and democracy can’t function if there’s no transparency and if people in power don’t tell the truth about what they are doing.

Limiting Free Speech (40): The Chilling Effect of Political Correctness

A few days ago, a senior US journalist by the name of Helen Thomas expressed the view that Jews needed to “get the hell out of Palestine” and return to their countries of historical origin (she named Germany and Poland, as well as “America”) (source).

Subsequently, a lot of folks expressed the view that she should resign or else be fired (source). She swiftly agreed. Now, forcing someone to resign because of an opinion, however stupid or disgusting this opinion may be, is likely to have an adverse effect on free speech, not only the freedom of speech of the person in question but of anyone else who may believe – rightly or wrongly – that his or her livelihood may be at stake because of certain opinions.

The forced retirement of Helen Thomas is further proof, if any were needed, that it’s still unacceptable, in public discourse, to be wrong in one’s opinions. I find that sad.

Thomas gave voice to an opinion which she then, almost immediately, retracted; no one, in the subsequent debate, defended the substance of her remarks. She was wrong; everybody, including Thomas, agrees on that point, and no real harm was done to anyone but Thomas when the video of her remarks surfaced.

But if you turn out to be wrong, even temporarily, even only once, on a hot-button issue, that’s enough for effective excommunication from polite society. That, to me, is chilling. (source)

(More on the chilling effect and on political correctness). A social chilling effect produced by political correctness may be as effective as state imposed censorship.

Of course, given her age (89), Helen Thomas may in fact not suffer any serious consequences from her forced retirement. But what happened to her can happen to others, and the mere risk of such a thing happening may be enough for some people – those with more to lose – to think again and decide that it’s perhaps better to shut up.

Now, none of this defense of Helen Thomas should be understood as a defense of what she actually said. Here’s a good quote explaining what exactly is wrong with what she said, if that isn’t immediately clear:

why the big deal over batty Helen Thomas? What is so especially offensive about her comments (comments that now seem to have gotten her fired)? I think the answer is fairly obvious. While it is one thing (not a good thing, of course) to argue in euphemism for the destruction of Israel by invoking the so-called one-state solution, it is quite another to advocate for the “return” of Israeli Jews to their German and Polish homelands, not merely because such advocacy is almost comically absurd and cruel (or, at the very least, stunningly ignorant of recent European history) but because this argument denies to Jews what Helen Thomas, and people like Helen Thomas, want to grant the Palestinians: Recognition that they comprise, collectively, a nation.

The Jews, of course, are an ancient nation, a nation whose history took place in a sliver of land called Israel. Helen Thomas’s argument, if you can call it an argument, centers on the pernicious belief that Jews are strangers in a place called “Palestine.” Palestine, of course, is the name that was given by the Romans to the Land of Israel precisely in order to sever the connection between the Jews and their homeland. Helen Thomas, and people like her, are thus soldiers in a (Roman-inspired) war against history. This particular war is not as offensive to most people as the war against the memory of the Shoah, but it is rooted in the same grotesque motivation: To deny to Jews the truth of their own history. (source)

One additional remark: none of this should be interpreted as implying that people’s free speech rights entail a right not to be fired for what they say. More posts in this series here.

Limiting Free Speech (26): Incitement to Violence and Pro-Life Activism

In the margins of the most recent case of political violence against an abortion doctor in the U.S., some people claimed that the media was in part to blame. The doctor in question was indeed publicly vilified on many occasions, and during many years, by certain conservative and pro-life pundits, on television and elsewhere. Especially Fox’s Bill O’Reilly was targeted as having some responsibility. His frequent outbursts against the doctor may have incited the attacker to eventually commit murder. Singling out this one doctor may have made him into an icon of abortion, and putting him squarely in the public eye may have made him the focus of a movement with a history of violence.

Of course, there’s nothing new to discussions about speech that openly calls for violent acts against political, religious or ideological opponents. For example, it was claimed that the infamous Muhammad Cartoons were directly responsible for violent acts against Muslims and/or violent reactions by Muslims. Another example is Radio Mille Collines, the Rwandan radio allegedly responsible for calling on Hutus to go out and murder Tutsi.  Part of the debate around hate speech has to do with speech that is perceived to be incitement to violence.

I generally believe that some circumstances allow for limitations of the right to free speech, although I also believe that this right is of such importance that limitations must be exceptional and carefully considered. I invite you to read my general argument here. Basically, for me this is a problem of contradictory human rights, and of balancing rights so as to avoid the greater harm. In the case I’m discussing in this post, the right to free speech has to be balanced against the right to life and physical security of the people who are the targets of speech (e.g. abortion doctors and others).

The important thing to consider, in my view, is the causal relationship between speech which calls for violence, and the actual subsequent violence itself. Without such a causal relationship, the argument in favor of limitations can’t get anywhere. However, such causal relationships never easy to establish. How do we know to what extent a perpetrator of a violent act was influenced by others calling upon him to act? And that this influence was the main and overriding cause of his actions? In some cases, this causal relationship may be more convincing than in other cases. Mille Collines is probably easier to label as an accomplice in crime than Bill O’Reilly, whatever you think of the content and the style of O’Reilly’s rants. But even in the most obvious cases there is a very large grey area. Human motivation is very complex, influenced by many different things, some of which can go back very far in the past.

However, it’s one thing to determine, after the fact, that someone who said something was partly responsible for acts of violence committed by others. It’s quite another thing to use this responsibility as a justification for limiting speech and thereby preventing future acts of violence. Even if we can, beyond some measure of doubt, agree that there is a causal link between certain violent words and violent acts, this is always and necessarily after the fact, and without much use for the future.

Human affairs are unpredictable. They aren’t in any way like the laws of gravity or the laws determining the movements of objects in space. Previous causal relationships in human affairs can seldom if ever be distilled into laws of behavior. Even if we agree that there was a causal link between certain violent words and violent acts which we observed in the past (and that’s already quite difficult, given the numerous possible causes of human behavior and the difficulty of separating them from each other), this in no way justifies preventive anti-speech measures. Using previous causal relationships between speech and acts as precedents in order to limit similar speech which we feel can produce similar acts, means, in fact, assuming a causal relationship between speech and acts that haven’t even happened yet. And this is, evidently, even more difficult than determining causal relationships between speech and acts which have happened.

If we return to our example, this means that we would limit what O’Reilly can say in the future about abortion doctors. First we assume that Dr. Tiller, the doctor whose murder started this discussion, was murdered in part at least because of what O’Reilly said, and then we assume that if O’Reilly continues to say similar things about other doctors that these too will be murdered. That’s two very tentative assumptions.

I’m personally convinced that incitement to violence can indeed make violence more likely, that free speech can be one of the causes (but never the only cause) of violent acts, and that those who speak or write in public have to take this risk into consideration if they want to live responsible lives. However, I’m not (yet) convinced that it’s possible to find a way to limit freedom of speech so that we can avoid violent consequences, and without doing more harm than we (hope to) prevent. I don’t see how a law limiting incendiary speech can do justice to the crucial differences between cases. Such a law would most likely be overkill and, in addition, create a chilling effect. However, this shouldn’t stop us from calling on all public figures to cut out the hate. Hate and vilification boost the ratings, but they never do any good.

Limiting Free Speech (17): Media Attention and the Chilling Effect

Our right to free speech doesn’t imply a duty of other people to listen to us. However, speech in general requires listeners. People speak because they want to be heard. They want to convince other people of their point of view, they want to build communities around issues and causes, and ultimately many acts of speech are intended to change the world. Most people don’t speak because they like the sound of their voice. They want people to listen.

The lack of an obligation to listen doesn’t, in itself, limit free speech. My freedom of speech isn’t limited by the fact that no one listens. However, a lack of an audience or a public, a lack of attention and recognition does make people want to stop speaking. Speaking to a wall gets boring after a while. So we can say that a lack of attention has a chilling effect on speech.

As such, this isn’t a problem. There are good reasons why many utterances don’t receive attention. They are uninteresting and the world isn’t any the poorer without them. So let them chill. But we all know that attention isn’t just. People lack attention for both the good and the bad. Many good things don’t get any attention, and many bad things do. A lack of attention can and does silence people who have truly interesting things to say, and the world is less without them.

Attention would be more just if people were not manipulated towards and away from certain types of speech. And here the culprit is the media. The media are essential in bringing sources of speech to a public. Book publishers make books from someone’s speech, and take these books to people who are willing to pay some attention to them. Television programs, internet sites, magazines etc. basically do the same.

But the media make a choice. Some cases of speech are “mediated”, others aren’t. They would create a just type of attention for cases of speech, if they would make this choice solely on the basis of the value (“the interestingness”) of the cases, but of course they don’t. The media have various reasons to select the speakers that are given an audience. The most important reason isn’t quality but profit. What will create the biggest profit? As a result, the most outrageous and controversial (e.g. Ann Coulter), the most sexually appealing (e.g. Paris Hilton), the most violent (e.g. Bin Laden), the most spectacular (e.g. Harry Potter) etc. receive the most attention.

This is often enough for moderate, thoughtful and nuanced seekers of the truth to simply give up. No one can say that their right to free speech was actually violated by some ominous power. They were simply discouraged to speak by “anonymous market forces” that are just as efficient as the most brutal dictator. And no one knows what the world has lost.

Limiting Free Speech (13): Chilling Effects; Indirect, Covert and Non-Governmental Limits on Freedom of Speech

Free speech is normally limited by dictatorial governments.

  • They imprison, threaten, deport or kill dissidents.
  • They take away their livelihood, put them in psychiatric hospitals, indoctrinate or “re-educate” them.
  • They use propaganda.
  • They prohibit opposition political parties, demonstrations, rallies and assemblies.
  • They censor the media, kill or imprison journalists and create media-monopolies.
  • Etc.

But also more democratic governments, although in general supportive of human rights, may decide that in some cases limits on the freedom of speech are justifiable for the protection of other rights, for example in cases such as

  • Hate speech
  • Holocaust denial
  • Pornography
  • Libel
  • Etc.

All these limitations are initiated by governments and usually imposed through force and/or law. There are, however, other types of limitations, taking place in a less obvious manner, covert, indirect and sometimes even when we are not aware of them. Many of these limits are not government limits. They are imposed by citizens on other citizens, or even by citizens on themselves. And I’m not thinking in the first instance of those types of group pressure that are just as obvious as state pressure, like religious fundamentalists scaring people into submission by acts of terror or other threats. This type of pressure, which I call citizen tyranny, is not covert or indirect. On the contrary. Its goal is maximum publicity, in order to maximize fear and submission.

What I’m thinking of here are cases such as these:

Social pressure

In the Netherlands, the former MP and critic of Islam, Ayaan Hirsi Ali, was forced out of her home after her neighbors managed to convince a judge that the value of their property suffered from her presence. (As a public critic of Islam, she received death threats and was considered a likely target of terrorist attacks, hence the “house value problem”). After such events, people will obviously think twice before engaging in public debate, starting with but not ending with Hirsi Ali herself.

This is called a “chilling-effect“. Certain events lead to suppression of subsequent acts of speech because of the fear that the perceived possible consequences of the subsequent acts will be similar to the real consequences following the said events.

A chilling effect causes ripples in society: one event leads to limitations of speech in other, unrelated events; one person’s problems with speech cause other people, who have no connection with this person, to reconsider their speech acts. The word “to chill” means to freeze, to harden, to instill fear.

Self-censorship

In the U.S., post 9-11, the media have often indulged in self-censorship, inspired by patriotism or rather by the fear of not being recognized as a patriot during the so-called war on terror. Solidarity with the government at war and the commander-in-chief, or the fear of being perceived as unpatriotic, appeasers, “useful idiots” or even open allies of the enemy, has turned many into uncritical supporters of the war. These people actually limited their own freedom of speech. They did not say what they wanted to say or thought they should say, for fear of appearing un-American. Something similar happened during the McCarthy era.

Political correctness

Political correctness can also lead to chilling effects. Certain words such as “nigger” should not be used. There’s a good example in the movie “The Human Stain”, based on the novel by Philip Roth, in which Anthony Hopkins plays a professor who is dismissed after calling some of his absent students “spooks”. It turns out that these students are African Americans and that the word “spook” doesn’t only mean “ghost”. (Ironically, the professor turns out to be of African American descent himself). Also, certain causes for certain events should not be mentioned (for example the fact that some of the problems of the African American community are not caused by racism). Etc.

Political correctness can also result from fear. In this era of growing Islamic fundamentalism in multicultural western societies, the fear of causing insult and moral outrage, of creating divisions in society, can lead to chilling effects.

Other causes of limitations on the freedom of speech

  • Media monopolies (which do not only exist in dictatorial regimes) stifle independent and minority voices.
  • Party financing systems can make it very hard for certain voices to be heard in political debate and can make some voices (i.e. donor voices) louder than they should be.
  • The profit principle: media outlets only publish what they consider to be (possibly) profitable. This also stifles certain voices.
  • Etc.