A number of recent events have made me think about freedom of speech: reports of bloggers being arrested and harassed in some countries, controversy in India over regulating offensive content on social media, and recent sanctions against football players in Europe accused of using racial slurs. On the one hand, freedom of speech and of the press is one of those subjects that we all agree about in principle. The Universal Declaration of Human Rights, which elaborates the freedoms referred to in the United Nations Charter, states: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. On the other hand, we all agree that there are limits to freedom of speech—in the U.S., we have rules about libel and slander and restrictions on speech that incites imminent danger or violence.
Where the line is drawn in a specific case is the difficult issue. In the U.S., the archetypal example of speech that would NOT be protected is shouting fire in a crowded theater if the theater is not, in fact, on fire. This is prohibited because the speech threatens public safety by potentially causing a stampede and has no useful purpose. That one’s easy—but how to apply the principle more broadly is not. I’m not an attorney or an expert, and I was surprised to learn that this famous example was coined in a case that was very controversial, involving the right of a dissident to distribute leaflets opposing military conscription during World War One. In that context, the U.S. Supreme Court found the dissident’s exercise of free speech represented a clear and present danger to the U.S., and therefore said it was not protected by the Constitution. That decision has been overturned by subsequent courts, and such speech is today protected in the U.S.
In general, causing pain or offense is not a basis for prohibiting speech in the U.S., although sometimes authorities are permitted to regulate context. In a famous case from the 1970s, courts ruled that members of the Nazi party could march through a neighborhood in which many Jewish holocaust survivors lived, although they were prohibited from using the swastika symbol and the march ultimately occurred elsewhere. More recently, the U.S. Supreme Court upheld the right of a family-based religious sect to picket the funerals of American soldiers, despite the pain they inflict on mourners. However, a number of laws stand that regulate the sect’s right by requiring pickets to maintain prescribed distances from funerals for set periods of time before and after a ceremony.
The fact that you have a right to say something is not the same as saying you won’t suffer any consequences from your speech. As an American, I was not at all surprised to read about footballers being fined by the league and suspended for allegedly making racist remarks, since I can recall any number of similar cases in the U.S., in some of which the offender also lost his job. What did surprise me was to hear that criminal charges have been filed over an alleged racial slur. I don’t think that would happen in the U.S., unless there was an incitement to violence.
The internet and social media have brought these issues even more to the fore, in part because they make it easier for “fringe” opinions to present themselves to broad audiences. For example, I am personally deeply offended by websites posted by cranks alleging that 9-11 was a U.S. government conspiracy. My sense of outrage might even tempt me to make an argument that dissemination of such misinformation is dangerous and should be banned. Without even considering the legal impediments to such an argument, however, I think efforts to regulate such “dangerous content” threaten to undermine the promise of the internet as an agent for innovation, a new tool for connections among people, and a platform for growth.
Secretary Clinton spoke earlier this month at the Freedom Online Conference in the Hague and I couldn’t say it any better than her:
“… the benefits of the network grow as the number of users grow. The internet is not exhaustible or competitive. My use of the internet doesn’t diminish yours. On the contrary, the more people that are online and contributing ideas, the more valuable the entire network becomes to all the other users. In this way, all users, through the billions of individual choices we make about what information to seek or share, fuel innovation, enliven public debates, quench a thirst for knowledge, and connect people in ways that distance and cost made impossible just a generation ago. But when ideas are blocked, information deleted, conversations stifled, and people constrained in their choices, the internet is diminished for all of us.”
Apologies for another long pause in my blog postings, and for making the first one back so long and dry! I hope you all stay happy and safe through the holidays and the new year.