Yes you can, no you can’t! Tim Mendham takes a brief trip through the history of free speech.
(An edited version of this essay was published in The Skeptic magazine,
June 2019, Vol 39 No 2. Reproduced here with permission)
Everyone
knows the famous statement on free speech by the 18th century French
philosopher Voltaire: “I disapprove of what you say, but I will defend to the death
your right to say it.”
It’s
an oft-cited quote that is used to justify the liberalisation of expression, and
a view that is typical of Enlightenment thinking.
Only,
like a lot of our understanding of free speech, it’s wrong.
The statement
was actually written by Evelyn Beatrice Hall (aka SG Tallentyre) in 1906. She coined
the sentence in a book called The Friends
of Voltaire, an anecdotal biography telling the stories of ten men who were
contemporaries and friends of the philosopher. The sentence appeared in a chapter
entitled Helvetius the Contradiction – about Claude Adrien
Helvétius, author of De l’Esprit (On Mind)
– and was supposed to indicate the sort of approach Voltaire may have
had, not what he actually ever said.
Like
the famous love-and peace prose poem Desiderata
(“Go placidly
amid the noise and haste
etc”) that first appeared in the 1920s but achieved fame in the 1960s and 70s
when purported by some to be a document from the 17th century, the Voltaire
‘quote’ has the imprimatur of a history that it does not deserve. And like Desiderata, reality is a lot more complicated
than that.
As is
the notion of “free speech”.
The Oxford Dictionary defines “free speech” as
“The right to
express any opinions without censorship or restraint”, and Macquarie Dictionary as the less absolute “The right to express oneself
and impart one’s opinions in speech or writing or any form of public media”.
Of course, dictionaries don’t
always live in the real world, and it would be unlikely that any society would give
free rein to any and every statement by any and every member, regardless of content,
intent or impact. Free speech comes at cost.
The Olden Days
Older
civilisations have often taken a simplistic view of human rights and free speech:
don’t rubbish the ruler and you’ll be OK.
According to the New Internationalist, “China did not develop
an idea of rights that were inherent and natural to the individual as had arisen
in Western Europe. However, the ideally organised Confucian society was supposed
to provide social welfare and just treatment. People were expected to know their
place. … The powerful were expected to behave with benevolence, and failure to do
so could result in forfeiture of power.”
On the other side
of the world, Republican Rome was witness to several cases where political speech
was suppressed by violence. The most infamous case was the murder of the reformer
Tiberius Gracchus
in 133 BCE by the leaders of the Senate. However, the killing was not done legally
or by the Roman state – it was essentially aristocratic mob violence. The Republican
state never created the legal tools to formally censor political speech.
This changed with
the arrival in Rome of the Emperors, beginning with Caesar Augustus in 27 BCE. When
supreme power is invested in a single person, they tend to be more sensitive to
criticism from their subjects. Libel – and by which we mean libel against the Emperor
or his government – was prosecuted as treason under Augustus, and by all following
Emperors. Book burning – or people burning – was par for the course and
continued well into the Middle Ages.
For instance, as the ‘menace’
of printing spread, more governments attempted to centralise control. The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546.
A
few years earlier, the first editions of the Catholic Church’s Index Librorum Prohibitorum (“List of Prohibited
Books”) appeared, not in Rome but in Catholic Netherlands (1529); Venice (1543) and Paris (1551). The
Church continued to publish the list until it was discontinued in 1966.
At the
peak of its empire, Venice had rules that punished anyone who criticised not the
government but the city state itself, such was the pride the citizens showed towards
“la Serenissima”, no doubt amplified
by the city’s tenuous hold on existence both geopolitically and geologically. Foreigners
who maligned the state were exiled; locals were imprisoned, if not murdered.
But while
free speech against the Venetian state was outlawed, free speech against individuals
of the public was not. Gossip, innuendo and scheming were a currency in Venice –
the term “imbroglio” refers to a part of the Piazetta off St Mark’s Square where
people gathered to elect their leaders and where they could share the latest dirty
laundry. If they weren’t gossiping, they were accusing others of crimes by dropping
notes into the bocce di leone, sort of
post boxes that were scattered around the city with a slot in the mouth for the
accusatory notes.
19th Century Developments
In the
19th century there began a more nuanced approach to free speech and the
responsibilities that that entailed. The concept extended beyond criticism of the
powers-that-be, whether monarch, government, or church, to statements that impact
on the broader community.
One of
the most influential figures on personal liberties was the English philosopher John
Stuart Mill. His book On Liberty (1859) addresses the nature
and limits of the power
that can be legitimately exercised by society over the individual. His conception of liberty justified the freedom of the individual
in opposition to unlimited state and social control. Not to say he always felt that
way – his concern for liberty did not extend to all individuals and all societies.
He stated that “Despotism is a legitimate mode of government in dealing with barbarians.”
Nonetheless, for the non-barbarians, Mill
opened up a landscape of liberties of expression: “There ought to exist the fullest liberty of professing and discussing, as
a matter of ethical conviction, any doctrine, however immoral it may be considered.”
(Chapter 2)
He adds: “If all mankind
minus one were of one opinion, and only one person were of the contrary opinion,
mankind would be no more justified in silencing that one person than he, if he had
the power, would be justified in silencing mankind.”
He is talking about “absolute freedom of opinion and
sentiment on all subjects, practical or speculative, scientific, moral or theological”.
If liberty of expression is stifled, the price paid is “a sort of intellectual pacification”
that sacrifices “the entire moral courage of the human mind”.
But he then raises an issue which has resounded through
philosophical and practical debate on freedom of speech ever since – the “harm principle”.
Mill suggests that we need some rules of conduct to
regulate the actions of members of a political community. The limitation he places
on free expression is “one very simple principle” which states that “the only purpose
for which power can be rightfully exercised over any member of a civilised community,
against his will, is to prevent harm to others”.
“[The member’s] own good,
either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled
to do or forbear because it will be better for him to do so, because it will make
him happier, because, in the opinion of others, to do so would be wise, or even
right. … The only part of the conduct of anyone, for which he is amenable to society,
is that which concerns others. In the part which merely concerns himself, his independence
is, of right, absolute. Over himself, over his own body and mind, the individual
is sovereign.”
In other
words, free speech is not an invitation to, as the OED says, “The right to express
any opinions without censorship or restraint” – other members of society are involved
and consideration must be given to them.
The Trans-Global Era
As politics
and nationhood developed in the 20th century, in the times between and
post wars, the era of international ‘interference’ in nations’ social programs began
– first with the League of Nations, and then with that harbinger of the One World
Government, the United Nations and its various offshoots.
Freedom
of expression is recognised as a human right under Article 19 of the Universal
Declaration of Human Rights (UDHR) and recognised in international
human rights law
in the International Covenant on Civil and Political Rights (ICCPR).
The UDHR was adopted by the United Nations General Assembly on 10 December 1948 as Resolution 217. Of the then 58 members of the UN, 48
voted in favour (including Australia), none against, eight abstained, and two did not vote.
Article 19 states that “everyone shall
have the right to hold opinions without interference” and “everyone shall have the
right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his choice”.
In December
1966, the ICCPR was adopted as a multilateral treaty by the United Nations General Assembly. It initially came into force from March
1976 – as of August 2017, the Covenant has 172 parties and six more signatories
without ratification; Australia signed it in December 1972, and it came into force
in November 1980.
The covenant commits its
parties to respect the civil
and political rights
of individuals, including the right to life, freedom
of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
However, the version of Article 19
in the ICCPR amends that from the UDHR by stating that the exercise of these rights
carries “special duties and responsibilities” and may “therefore be subject to certain
restrictions” when necessary “for respect of the rights or reputation of others”
or “for the protection of national security or of public order, or of public health
or morals”.
Freedom of speech and expression, therefore,
may not be recognized as being absolute, and common limitations or boundaries to
freedom of speech relate to (as Wikipedia puts it) libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labelling, non-disclosure agreements, the right
to privacy, the
right
to be forgotten,
public
security, and perjury. Justifications for these
limitations include the harm principle proposed by John Stuart Mill.
These
limitations – certainly those pertaining to incitement and fighting words – did
not seem to be an issue for noted social critic Noam Chomsky, who said in a 1992
documentary based on his book Manufacturing
Consent, that: “If you believe in freedom of speech, you believe in freedom of
speech for views you don’t like. Dictators such as Stalin and Hitler were in favour of freedom of speech
for views they liked only. If you’re in favour of freedom of speech, that means
you’re in favour of freedom of speech precisely for views you despise.”
It is hard to tell whether
he was being critical of freedom of speech itself, or those who would want to restrict
it.
These restrictions were discussed
earlier this century by the European Commission for Democracy through Law
– better known as the Venice
Commission as it meets in Venice (that home of gossip and accusation).
The role of the Venice Commission is to provide legal advice
to EU member states and, in particular, to help states wishing to bring their legal
and institutional structures into line with European standards and international
experience in the fields of democracy, human rights and the rule of law.
In 2006 the EU’s Parliamentary
Assembly of the Council of Europe passed Resolution 1510 on freedom of expression
and respect for religious beliefs, particularly the question of whether and to what
extent respect for religious beliefs should limit freedom of expression. It expressed
the view that freedom of expression should not be further restricted to meet increasing
sensitivities of certain religious groups, but underlined that hate speech against
any religious group was incompatible with the European Convention on Human Rights.
In 2016
the Venice Commission noted that “A democracy should not fear debate, even on the
most shocking or anti-democratic ideas. It is through open discussion that these
ideas should be countered and the supremacy of democratic values be demonstrated.
… Persuasion through open public debate, as opposed to ban or repression, is the
most democratic means of preserving fundamental values.”
But,
as always seems to happen in debate on free speech since the days of Mill, there
was a caveat: “The Venice Commission does not support absolute liberalism. While
there is no doubt that in a democracy all ideas, even though shocking or disturbing,
should in principle be protected … it is equally true that not all ideas deserve
to be circulated. Since the exercise of freedom of expression carries duties and
responsibilities, it is legitimate to expect from every member of a democratic society
to avoid as far as possible expressions that express scorn or are gratuitously offensive
to others and infringe their rights.”
What it comes down to is, yes you have freedom of speech, but no, you can’t necessarily use it. Yes, you have the right to your own ideas, but you can’t necessarily express them. And if you express them, others have the right to criticise your ideas (if not actually vilify you). And most of all, and despite any regulation or legislation or philosophising or Imperial decree, no-one has to take you seriously, and that’s their freedom.
Tim Mendham is executive officer of Australian Skeptics Inc. and editor of The Skeptic magazine.
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