Tag Archives: Universal Declaration of Human Rights

Fighting words

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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What is a ‘classical liberal’ approach to human rights?

The Conversation

Catherine Renshaw, Australian Catholic University

Tim Wilson, Australia’s Human Rights Commissioner, has announced that he will take a “classical liberal” approach to human rights. There is a fair degree of confusion about what this means.

Classical liberalism is not a coherent body of political philosophy. However, in relation to human rights, there are three key ideas that most classical liberals subscribe to.

The first is the idea that all people are born with rights, which they hold simply because they are human. This is the idea that underpins Article 1 of the Universal Declaration of Human Rights:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Not everyone shares this belief. Many people believe that rights are simply entitlements granted by the state and held only by citizens. But for classical liberals, rights are much more than this. They are universal (held by everyone) and inalienable (they continue to exist regardless of whether or not governments recognise them).

The second idea concerns what human rights actually are. Classical liberals believe that the list of genuine human rights is quite short. It is comprised primarily of those things that are necessary to preserve life and individual liberty.

This list includes the right to be free from torture, slavery, arbitrary arrest or detention. Freedom of association and freedom of speech are also seen as legitimate human rights. But other rights, particularly economic and social rights, are viewed as mere aspirations.

Thirdly, classical liberals believe that the role of the state in fulfilling or protecting human rights should be very limited. States should do only what is necessary to protect life and property.

Classical liberals believe in a minimal state – as political philosopher Robert Nozick puts it, a “night watchman” state – that does not interfere with the privacy of citizens and their freedom to live, work and be educated in any way they see fit.

Wilson has alluded to all of these ideas in public statements. Like attorney-general George Brandis, Wilson has argued in favour of focusing the attention of the Australian Human Rights Commission on the rights championed by classical liberals, particularly the right to free speech.

Wilson has talked about the problems that occur when certain rights (such as the right not to be discriminated against) collide with other rights (such as the right to freedom of association). Like Brandis, Wilson has criticised the Australian Human Rights Commission for its emphasis on anti-discrimination.

But there are several reasons why a classical liberal approach to human rights does not necessarily reflect the needs and aspirations of contemporary Australian society.

First, the philosophical foundation for the classical liberal idea of human rights is very shaky, as argued by the likes of philosopher Joseph Raz. Historically, classical liberals view rights as bestowed by God or derived from some essential human essence.

But many Australians seem to take a more pragmatic view of human rights, as noted by Aboriginal and Torres Strait Islander Commissioner Mick Gooda. Rights are the important interests and values that democracies have decided to protect. Far from making rights less important, this makes them more so.

Community consultations show that many Australians are also more ambitious than many classical liberals about what these rights should consist of. Brandis has said that freedom is the core human right without which nothing else is possible. But food, work, education and social security are also important. Rights are inter-related and inter-dependent. It is a mistake to think that something like a right to adequate health care is too vague to be an enforceable right.

Human Rights Commissioner Tim Wilson has criticised the
government’s policy 
of detaining asylum seeker children. AAP

Finally, Australians seem to aspire to more than a society where individuals are just left alone to pursue their own interests and where the best a government can do is prevent individuals from being arbitrarily deprived of life or property.

For example, ensuring that certain groups of people are not discriminated against is a central part of an equal society. As Brandis points out, since its establishment in 1986, the Australian Human Rights Commission has spent much of its time advancing the idea in Article 2 of the Universal Declaration of Human Rights, which reads:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This is hard, slow work, done on a case-by-case basis and through public education and training. It certainly lacks the glamour of the classical liberal rhetoric around liberty and freedom, but it has been a vital part of achieving a fairer society and a better life for millions of Australians.

So far, Wilson has not been at his most convincing championing rights of privacy or arguing for more free speech. Where his views have resonated is on subjects such as children in immigration detention. On this issue, Wilson has simply said that he doesn’t think it is right. This is the sort of visceral response shared by most Australians.

In addition to his gut feeling that imprisoning children is wrong, as a classical liberal, Wilson should find the government’s entire asylum seeker policy deeply troubling. What the government is doing is violating the rights of the few (asylum seekers) in the name of achieving a greater good for the many (preventing deaths at sea and protecting Australia’s sovereignty).

To a classical liberal, this sort of utilitarian approach to rights should never be acceptable. Wilson’s intervention on this issue will be important.

The ConversationCatherine Renshaw is Lecturer, School of Law, at Australian Catholic University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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