Wednesday, 6 January 2016

Keane: Celebrating the Four Freedoms: Freedom of Speech and Expression

“The first is freedom of speech and expression – everywhere in the world.”
– Franklin Delano Roosevelt.
Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt’s speech, although the speech itself gives no indication beyond the numbers that some of the freedoms are of more importance than others. In contemporary international human rights law, the United Nations emphasises that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, meaning that there is no ranking. For many however, freedom of speech and expression is a ‘gateway right’ essential to the realisation of all other rights. In other words, it is more important than many other rights for it underscores the conditions required for the realisation of a just domestic and world order essential to the articulation and implementation of global rights standards. Thus the 1789 French Declaration of the Rights of Man and of the Citizen, a precursor of the contemporary documents, described free communication of thoughts and opinions as “one of the most precious rights” (Article 11).
It is understood that freedom of expression is not unlimited, but the nature of limitations on freedom of expression varies from a global perspective. Firstly, there is universal agreement on the need for a free press and other essential tools of expression. But differences arise in relation to the need to protect minorities and others from harmful speech, with marked differences in global perspectives. What is considered protected speech in the United States, usually the strongest advocate at the international stage, can be a crime in Europe – both regions sharing common legal traditions. This may be amplified when contrasted with other regions of the world. The role of speech in the commission of atrocities, notably the Rwandan genocide, has played out in international criminal tribunals – the so-called ‘media trial’ of Ferdinand Nahimana and others before the International Criminal Tribunal for Rwanda focused on the use of radio to instill hatred in listeners and foster genocidal intent. The role of similar propaganda in the conditioning of the German public to turn on its Jewish minority before the militarised genocide of the Holocaust was also a feature of the Nuremberg trials of Julius Streicher and others. These extreme situations have led to the understanding that incitement to violence or atrocities cannot be protected by freedom of expression and so it does not have the absolute status at the international level of, say, the prohibition on torture.
A more problematic situation was the so-called ‘Danish cartoons’ controversy, which lasted over a decade and culminated in the shootings one year ago in Paris of the Charlie-Hebdo cartoonists. The shootings were widely depicted as an assault on freedom of expression. There were two strands to the linking of freedom of expression and the cartoons. Firstly, that the cartoons are protected by the right to freedom of expression. Secondly, that the cartoons themselves somehow represented the right to freedom of expression; that they are symbolic of this right and by desisting from drawing them, the wider right itself was under threat. On the first, European cartoonists were not prosecuted for producing the cartoons, which leads to the conclusion that they were protected by freedom of expression (although the debate is a nuanced one given the existence of laws protecting racial and religious groups in Europe). The second is much more difficult – why did these cartoons become invested with this symbolic defence of freedom of expression? And should they have been? There is no answer, but there has long been an acceptance in Europe that certain forms of speech are not tolerated. The European Court of Human Rights regularly upholds prosecutions of those who attack minorities through speech, in particular racial and religious groups. The attacks in Paris (both of them) should not impact the balancing act inherent in protecting European minorities while upholding freedom of expression and related values. These debates will continue and while everyone is agreed on the fundamental importance of freedom of expression, and its securing “everywhere in the world”, blanket articulation of freedom of expression can also lack nuance essential in finding the right balance. There is an interesting story told about freedom of expression by the South African judge, Albie Sachs:
“I once shared a platform at a Book Fair in Sweden with the Nobel Prize winning Nigerian writer, Wole Soyinka, and Nadine Strossen, a distinguished leader of the American Civil Liberties Union, an extremely articulate and persuasive defender of free speech. Nadine spoke forcefully and fluently in favour of virtually unlimited free speech. Wole then started his response in a way that I found surprising and disconcerting. ‘We have just been listening to a white middle-class woman from America’, he told us in his deep voice, ‘giving us a typical lecture of the kind we can expect from a white middle-class American woman.’ Nadine went pale. The audience was embarrassed. I felt a degree of shame that a great writer from my continent could dismiss her arguments in that shallow way. Wole paused for a moment, relaxed his stern posture, and added more quietly: ‘You see, Nadine? These were just words. And they hurt, didn’t they?’”
Wole’s speech went on to describe the role of words, speakers and broadcasters in inciting massacres in his native northern Nigeria. Sachs continues:
“Normally I’m a great defender of free speech against any form of control. Normally I am concerned about censorship and thought control, about the importance in an open society of not suppressing alternative and unpopular views. But at the same time I believe that the right to say what I like, when I like, to whom I like, has to acknowledge the demeaning and destructive impact that words may have in a particular context… In sum, the libertarian right to speak your mind has to be balanced against profound constitutional values of shared citizenship.”
Sachs defended individuals being prosecuted under apartheid laws, one of the most repressive regimes of the UN era including widespread curtailment on freedom of expression, so his balanced understanding of freedom of expression is worth noting. This is particularly so given that, technically, we are realising “freedom of speech and expression – everywhere in the world”, with the internet age. Roosevelt’s first freedom may actually, to a certain extent, have arrived. Although the extent to which the marginalised partake in this freedom is also worth reflecting on, including connectivity gaps between men and women in particular in developing countries. Similarly many of the basics remain the same as they did in Roosevelt’s time, including protection for those who criticise, as journalists, bloggers, writers, human rights defenders or citizens, balanced with the need to ensure that minorities and other groups are afforded protections as well as access.
Dr. David Keane is Associate Professor in International Human Rights Law at Middlesex University, London, UK.

This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

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