Freedom of speech in multicultural Europe
Av Ulrik Tetzschner, tidligere praktikant i Civita
What is the role of freedom of speech in a democratic society and where are its limits?
Introduction
During the last couple of years, an interesting debate regarding freedom of speech has taken place. It all started in 2005 when the Danish newspaper, Jyllandsposten, published a caricature of the Muslim prophet Mohamed. Other newspapers followed, like the Norwegian Magazinet. Due to the religious aspects this was not taken well by Muslims worldwide. They were insulted and very upset as they felt that their Prophet had been degraded. Huge demonstrations began outside of Scandinavian embassies in different countries. Peace seeking nations were all of a sudden hated in the Muslim part of the world. Norwegian and Danish flags were burned in the streets of Islamabad. These events illustrate that the freedom of speech also has its price. Is the right to express oneself really worth people getting hurt and deeply offended?
Examples like these raise important questions and illustrate the complexity regarding the limits of the freedom of speech. We have to ask ourselves; how important is this right in a democratic society and how far are its limits supposed to be?
Why freedom of speech is essential in a democratic society
In order to give a thorough presentation of the freedom of speech, we need to look at what role it plays in a mature democracy. It is only by emphasizing its role that one can understand why difficult conflict occurs. A defence of the Mohamed caricatures is not necessarily an attack on Islam, but rather a defence on one of the necessities in a democracy.
How can one define the democratic society? There are several definitions throughout the world, of what a democracy should consist of. Even within Europe the opinions can be different. There is however a degree of family resemblance between the different usages of democracy. Certain core values can therefore be ascribed to the term democracy.
A common starting point is that the democratic society refers to rule by the people. If the citizens of a country are to be governed, then the governing must be done by themselves and not by others. Governments can only derive their just powers from the consent of the governed.
This requires a high level of communication among them. If the citizens shall rule, they need to be able to express their opinions and values with few restrictions. It is only with a great level of communication that they get a sufficient capacity to exercise reasonable political judgment. This is stated in all modern political theory (Barnett 2003). Political questions have to be freely discussed, and when the discussion is ended, decision upon them must be made by vote of the citizens. As Alexander Meiklejohn writes in Free speech and its relation to self-government the point of these discussions is not the “words of the speakers, but rather the minds of the hearers” (Meiklejohn p. 25). In order to achieve wise decisions the voters must be made as wise as possible. The freedom of speech allows all facts and interests being fully and fairly presented to the public. The right is not the guardian of unregulated talkativeness. It is however a tool to secure that everything worth shall be said.
The freedom of speech protects all sort of expressions, no matter if there are sensible. Meiklejohn emphasizes that it is only the citizens who may decide whether an idea is unwise or unfair. This means that unwise ideas must have a hearing as well as wise ones. The right to freedom of speech is therefore a necessity of the idea of people rule.
The fact that the quality of any idea relies on the judgment of each individual means that the freedom of expression also includes the right of the minority to be heard. No expression is too ridiculous, and even though it can seem highly irrelevant, it can always contribute to enlighten the public. And as John Stuart Mill writes, even the untrue statements can consist of some elements that are of truth (Svendsen 2009).
When looking at its important role in a modern society, one could think that the freedom of speech should be unlimited. This is obviously not true. As we will see in the following presentation, the freedom of speech will often get in conflict with other essential rights.
The starting point: Freedom of speech
It is clear that freedom of speech has a significant role in our society. Especially European countries have realized its importance for a true democracy and have made a strong effort to maintain the right for the citizens. The members of The European Council have all agreed on securing the freedom of speech for their citizens. The preamble of the European Convention on human rights (ECHR) refers to an effective political democracy, and the freedom of speech is among those freedoms that are necessary to promote the effective democratic government. The right is embodied in article 10 of the ECHR stating that:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (…)
The starting point is in other words a right to freedom of speech regardless of limits. But as we shall see are there some exceptions that confine the right.
The freedom of expression includes expressions in all forms, whether it is through a book, a magazine, flyers, paintings, pictures, films, music and through e-mails. Caricatures are in other words protected by this starting point. Even a haircut or an outfit can be considered as an expression secured under article 10 (Høstmælingen 2003). The freedom of speech does not only include the positive expressions, but also the right to remain silent. As pointed out above, the right includes all sorts of expressions regardless if they are true or untrue, reasonable or unfair.
The limits
Hardly anyone thinks that the right to express oneself should be absolute. Some limits are always necessary. This is not only typical for the freedom of speech but for all human rights. It is admitted that no right is absolute, even not elementary rights, such as the right to life. They will always be subject to restrictions in some way.
It has been debated how broad the right to freedom of expression is ought to be. The question has not only occurred in recent time. It has been a subject for discussion in centuries. The philosopher John Stuart Mill was a keen defender of the fundamental rights in a modern society and has written numerous works about it. In his well known book On Liberty, John Stuart Mill writes that there are certain limits that confine the different rights, including the freedom of speech. The freedom of speech is in other words not unlimited. He established a principle, stating that the only purpose for which power can be rightfully exercised over any member of a civilized society, against his will, is to “prevent harm of others” (Mill p. 30 ). John Stuart Mill is arguing that an act that is causing harm to other people should be eliminated at once.
Whether the expression causes harm or not can depend on the context. A harmful act in one certain circumstance does not necessarily need to be harmful in another. There is for example a difference between writing something in a newspaper and saying it to an angry mob (Svendsen 2009). The latter can be quite provocative and cause serious harm on other people and therefore be illegitimate.
Mill further emphasizes that it would be a great misunderstanding of his principle to believe that human beings have no business with each other’s conduct in life, unless their own interest is involved. There are instead other instruments, than “whips and scourges”, one can use in order to persuade people to their own good (Mill p. 91). Expressions that for example are not true can be fought with strong arguments proving the false expressions’ poor quality. Even though the expression is legal, you can still criticize them. As the famous Voltaire once said: “I disapprove of what you say but I will defend to the death your right to say it”. According to Mill, human beings have a responsibility to help each other distinguishing the better from the worse.
It has been debated what Mill means with harm. The word is not very precise, and could be used in many different situations. But it is commonly agreed upon that when you are interfering with another person’s right you are also causing that person harm (Svendsen 2009). Simply hurting or offending that person is not enough as long as you don’t interfere with his rights.
It is not only John Stuart Mill who has phrased this modification of freedom of speech. One can say that the ECHR article 10 2 draw up legitimate “harms”, and therefore allows the member states to restrict the freedom of speech. The convention clearly states out that:
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
There are in other words several purposes that can legitimate restrictions. The different purposes that justify boundaries can with John Stuart Mill’s words be described as illegitimate harmful acts.
As the example with the Mohamed caricatures has pointed out, blasphemy has been a subject for debate for years when it comes to the limits of the freedom of speech. Several have claimed that a blasphemy ban is a protection of morals, and therefore be legitimate in a democratic society.
The relationship between the freedom of speech and blasphemy bans has also been an object for discussion in other multilateral organizations. In 2009 a United Nations forum passed a resolution condemning “defamation of religion” as a human rights violation. This was proposed by Pakistan on behalf of Islamic states in order to promote a “delicate balance” between freedom of expression and respect for religions. The resolution stated that Muslim minorities had faced discrimination, intolerance and acts of violence ever since the terrorist attacks on September 11. It also said that “Islam is frequently and wrongly associated with human rights violations and terrorism” (Reuters).
In Europe it is hard to realize why certain Muslims are so offended by some drawings. Is it perhaps because of the secularisation and the fact that religion is taking a smaller part of people’s lives? The European Union expressed concern about the new UN resolution. Although forms of religious discrimination should be taken seriously, it was problematic to bring together the defamation of religion with the concept of discrimination. They were afraid that it could be used to justify curbs on free speech in certain Muslim countries and ultimately restrict freedoms.
There is however not only Muslims who react on provocative blaspheme acts. The Wingrove v. The United Kingdom case from 1996 is an example that illustrates this. The case concerned a movie called “Visions of Ecstasy”. It was about a nun who had erotic fantasies. The British Board of Film Classification refused to grant distribution of the film because they meant it violated the English blasphemy ban. The producer of the film appealed the case to the European Court of Human Rights in Strasbourg. The court stated that there was no violation of art 10 in ECHR. The restriction was indeed an infringement to the freedom of speech. The United Kingdom was however entitled to have such a restriction due to the second paragraph of article 10 saying that the rights of others can limit the right to freedom of speech. Court accepted that the respect for the religious feelings can allow a State legitimately to restrict the publication of “provocative portrayals of objects of religious veneration”. This was considered necessary in a democratic society.
The case illustrates that even a blasphemy ban can be considered as a justified restriction. It is however important to have in mind that the starting point is the freedom of speech. Any restriction is an exception from this. Religious feelings will always be a subject to discussion and we will have to ask ourselves: is the protection of these feelings really worth restricting the freedom of speech?
Final remarks
Religion is only one of many aspects that can limit the freedom of speech. The events after the publications of Mohamed highlight the numerous challenges we face in a Europe that consist of mixtures of cultures were atheists and Muslims are to live side by side.
It is however important to emphasize the importance of the freedom of speech. The right is not an extra benefit, but rather a necessity to make the democratic society effective. With this in mind, we should remember that the freedom of speech is more important than the right not to be offended.
List of References
– Barnett, C, Culture and Democracy – Media, Space and Representation, Edinburgh University Press, 2003, p. 33-55.
– Høstmælingen, N, Internasjonale menneskerettigheter, Universitetsforlaget, Oslo, 2003, p. 249-261.
– Meiklejohn, A, Free Speech and Its Relation to Self-Government, The Lawbook Exchange, Ltd., Clark, New Jersey, 2004, p. 1-27.
– Mill, JS: On Liberty, in focus, Routledge, London, 1991, p. 23-71 and p. 90-107
– På Høyden, 2009, Ytringsfriheten er ikke urokkelig, viewed 16 June 2010, http://nyheter.uib.no/?modus=vis_nyhet&id=43446 <http://nyheter.uib.no/?modus=vis_nyhet&id=43446>
– Reuters.com, 2009, U.N. body adopts resolution on religious defamation, viewed 12 August 2010, http://www.reuters.com/article/idUSTRE52P60220090326
– Svendsen, L, Civita, 2009, Ytringsfrihetens grenser og begrunnelse, viewed 20 May 2010, https://www.civita.no/images/stories/PDFer/ci9vita-notat_5_2009.pdf <https://www.civita.no/images/stories/PDFer/civita-notat_5_2009.pdf>
– Österreichisches Institut für Menschenrechte, viewed 16 June 2010, http://www.menschenrechte.ac.at/orig/95_2/Wingrove.pdf