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┬ánon-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.

What Are Human Rights? (29): Negative or Positive Human Rights?

Take the right to free speech for instance. Negatively, it means that constraints on speech should be removed as much as possible. Legal people are used to view this and other rights in such a negative sense, because courts and judges are well-placed to remove constraints: they can invalidate or refuse to apply laws and policies that constrain rights such as speech rights; they can punish or fine people that constrain rights etc.

However, this legal interpretation of rights is insufficient. I’ve often argued that human rights are positive as well as negative, in the sense that they don’t merely require the removal of constraints but also the provision of prerequisites. Take again the right to free speech: we can’t say that anyone who does not suffer constraints on her speech has an effective right to free speech. While no one or no law may prohibit or stop a person from speaking, her poverty, lack of education etc. can make it very hard for her to speak effectively. I personally, for instance, find it much easier to blog when I’m able to read inspiring material. My freedom of speech, as I exercise it on this blog, would be non-existing if I wasn’t part of a global conversation about human rights. I would still have the negative right to speak, but I wouldn’t have anything to speak about. And the freedom to do what you like without impediments doesn’t make sense if you don’t have anything to do.

There may be a difference in degree: some rights, in most circumstances, are perhaps more positive than negative or vice versa. I guess the right to food is most often a positive right in the sense that it requires provision rather than forbearance. Although even in this example, we find that famines aren’t usually caused by the absence or non-provision of food but by constraints on the effective distribution of food.