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 (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.

Terrorism and Human Rights (6): The War on Terror

The War on Terror, started by the U.S. government as a response to the September 11, 2001 terror attacks and later joined by other governments, has had and continues to have grave consequences for the human rights of their citizens and of citizens of other countries. This is a high price for an uncertain gain.

However, before I list these consequences, I would like to make it clear that I believe, as any rational human being, that terrorism is evil, that it has to be destroyed and that democracies have a right to defend themselves against violent, anti-democratic fanatics.

I also believe that democratic governments should be especially vigilant because the freedoms that they are elected to protect, offer opportunities for those who hate freedom, opportunities that do not exist in other political systems. Potential terrorists find it relatively easy to enter a democracy and operate in it. A democracy is a very vulnerable form of government because of the freedom it gives to everyone, even those who don’t mean well.

The freedoms of a democracy can be and are abused, but this, it seems, has frightened democratic governments to such an extent that they have decided to limit these freedoms up to the point that they are in danger of abandoning their values, and hence doing the work of the terrorists for them. It can be acceptable to limit certain rights for the protection of other rights, but the right to security has taken on an absolute priority, at the expense of all other rights. There is no reasonable balance anymore. Some have called the war on terror a “war on freedom” (source).

1. Civil liberties

Governments try to defend their countries against terrorist attacks by limiting civil liberties in their territories.

  • The right to privacy has been limited: CCTV has become ubiquitous, DNA databases have been created, eavesdropping and wiretapping have been legalized etc.
  • “No-fly-lists” have come into force, limiting the freedom of movement of even those who have written critically of the government or attended peace-protests.
  • Hate speech laws have been voted to silence jihadist hate preachers, silencing others at the same time.
  • “Racial profiling” by the police has turned innocent people into possible suspects, often inverting the burden of proof.
  • Habeas corpus has been limited, periods of detention without charge extended, sometimes indefinitely (for “enemy combatants”).

However, in spite of all this, the constraints on a government’s actions within its territory are sometimes still considered to be inhibiting:

  • “Extraordinary rendition” has been covertly practiced, allowing suspects to be tortured outside of the territory by professional torturers in other countries.
  • Extra-territorial prisons have been created, in Guantanamo, but probably elsewhere as well, where suspects can be tortured or held indefinitely and where the Geneva Conventions supposedly don’t apply.

2. Mentalities

The war on terror has also changed people’s minds and attitudes.

  • The media have started to censor themselves. 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 them into uncritical supporters of the war.
  • Citizens have turned on Islam and Muslims. Xenophobia and more specifically islamophobia have undermined the ideals of tolerance and multiculturalism, and have in certain cases even led to hate crimes against Muslims.
  • A “culture of fear” has been created by the terrorist but also nurtured by irresponsible western politicians. This fear has damaged democracy. Not only have the media relinquished their traditional role as watchdogs. Politicians as well, and especially incumbents, have abused the fear of terrorism to harness support. Alert levels seem to go up just before elections.

3. Preemptive war

The US government has elaborated and implemented the strategy of preemptive war, a war

waged in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war. (source)

The Iraq war was deemed a preemptive war because Iraq was allegedly about to attack the US with weapons of mass destruction, or supply these weapons to terrorists. Whatever the merits of the case against Iraq – and with the passing of time these seem to become weaker and weaker – the war has been framed, correctly or not, as a necessary stage in the ongoing war on terror. It has, however, resulted in massive numbers of casualties on both sides. The human rights violations caused by the war stand in no relation to the violations caused by terrorism or the violations that could have been caused by Saddam.

In any case, you can’t solve the problem of terrorism by violent means only. Terrorism has causes, and there will be terrorism as long as these causes exist. (Mind you, I don’t want to excuse or justify terrorism).

4. Counter-productive

It is now widely believed, even in US government circles, that the war on terror is counter-productive. Especially the wars in Iraq and Afghanistan, the torture in Abu Ghraib and the detentions in Guantanamo have produced a backlash and have increased rather than reduced the terror threat. The 2007 National Intelligence Estimate issued the following among its “key judgments”:

The Iraq conflict has become the “cause celebre” for jihadists, breeding a deep resentment of US involvement in the Muslim world and cultivating supporters for the global jihadist movement. (source)

The war on terror has created and exacerbated resentment, hatred of the West and anti-americanism. And with anti-americanism often comes hatred of democracy and freedom and Islamic radicalization. Apart from the removal of the Taliban in Afghanistan, there is no evidence that any of the strategies in the war on terror has done any good (source).

5. Misnomer

There is something fishy about the concept of a “war on terrorism”. This “war” is in fact no such thing. It is in essence crime prevention and law enforcement. There is no well-defined enemy. Anyone can at any time become an enemy. For this reason, there is no conceivable end to the war. And if you claim to wage a war on terrorism, you might as well claim to wage a war on carpet bombing. Both are tactics or strategies, not something you wage war against.

If you insist on calling anti-terrorist actions a war, then you give too much credit to the riffraff you’re opposing. Rather than deranged criminals they can call themselves soldiers. And soldiers defend something. You legitimize them. You turn a crime into a two-sided struggle in which each side defends its positions. This in turn leads to the view that the war on terror is a war of the West against the rest, bringing back images of colonialism, imperialism and the crusades, again legitimizing the terrorists, helping to consolidate their often internally opposed forces, and making them honorable in the eyes of ordinary citizens outside of the West.

I can understand that the concept of a “war on terrorism” is useful for the executives in the West, because an executive that is at war has more powers, less oversight, more popular support and less criticism, but it’s a meaningless and dangerous concept. Let’s give it up.