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.

Plato, Democracy, and “Human Rights” (4): Real Theoretical Life

(please read part 1, part 2 and part 3 first)

In the ideal Platonic society, led by thinking people who use force to train others to become like them, there will be wellbeing because spiritual life, free from the slavery of nature and desires, is the only good life. It means freedom, the satisfaction of knowledge, and peace because the desires and passions of people are the main reason for strife. Also other reasons for strife, such as scarcity, will be eliminated by a planning state taking care of population and birth control. The number of citizens will no longer cause scarcity, envy, territorial expansion and other reasons to go to war.

So Plato started from an initially attractive premise, the importance of a thinking life compared to consumerism, but then issued a whole range of proposals to protect and promote this life which invariably lead to dictatorship. In all this, he is perhaps the classic example of the way in which the combined hostility to nature, materialism and the plurality of society causes hatred for democracy.

But even his premise is questionable. Is solitary reflection of the general, free from appearances and the particular, really the road to wisdom? Perhaps it is more correct to say that sense perception, expression, and hence the use of one’s body and the interaction with other bodies is the best way to gain knowledge. Much of science is still very material, and discussion, argumentation, deliberation and the testing of opinions through expression and discussion protected by human rights can radically improve our opinions.

We need interaction and communication with other people in order to think correctly, and even to think at all. Would we think without our parents and teachers, without speaking and listening to anyone, without engaging in the world of appearances? And would we be able to think more or less correctly without public interaction protected by a democracy and human rights, without venturing in the bigger world of appearances and without leaving our own small and private group of people? Thinking needs the public use of reason (see also this post on Kant). Thoughts are not something you develop on your own, not even in some small and closed group. You first need to listen to as many freely expressed thoughts as possible in order to develop your own thoughts, and then you need to test your own thoughts in confrontation with others.

By making your thoughts public and thus submitting them to scrutiny and tests by other people – first and foremost submitting them to those who are not your private or personal friends, because they might be too kind for you or too like-minded – you are forced to say how you came to have these thoughts and to give an account of the reasons why you have these thoughts instead of others. This will force you to reflect on your reasons and arguments, and, if necessary, to look for better ones. Giving a public account of your reasoning, or knowing in advance that you will give this account, makes you very critical of yourself and helps you avoid mistakes. Nobody wants to make a fool of himself.

The world of appearances, so disliked by Plato for its volatility and imperfection, actually improves the quality of thoughts because of the range of sources of information and opinions, because of the a priori self-criticism that it promotes and because of the a posteriori testing and objecting by other and not necessarily like-minded people (a phenomenon well known in the scientific community).

Giving a public account of your reasoning and arguments, taking objections into account, putting yourself in the place of someone else, think like someone else, look at things from another side or perspective, act as if you hold a contrary point of view, all this is possible only when different perspectives and different points of view are freely expressed. Human rights can help to achieve this. Without human rights, many valuable points of view or perspectives will not be made public, and many valuable objections and counter-arguments will not be known to someone defending a certain thought or idea. This can diminish the quality of the thought or idea in question and therefore it is difficult to understand how a theoretical life can benefit from the elimination of the world of appearances.

Knowledge can hence be defined in a way which is completely different from the Platonic, passive, lonely, anti-social, introvert, non-discursive contemplation. More on the problem of knowledge and politics here.

Parts 1, 2 and 3