A Primer on The Right to Free Speech

There is a lot of confusion as to what constitutes freedom of speech. This is my attempt at clearing it up.

The Right to Free Speech is fundamental for a democracy to function. The problem is that there is a clear misunderstanding on part of the general public about what constitutes this right and where their freedoms apply. Especially in regards to being censored.

This Primer will explain what this Right is, and what it isn’t,. I will also show public vs private property with respect to speech and what actually is censorship.

What this essay is not

The essay for the most part describes the world as it should be. I will not discuss specifics, other than as examples. There are centuries of legislation and case-law that governs civil liberties. It would balloon the scope of the essay beyond my control and frankly I am nowhere near qualified.

I will also not be discussing the historical and philosophical factors that gave us our current civil liberties regime. Those are discussions for some other day.

Defining The Right to Free Speech

Since the definition and legal language varies from jurisdiction to jurisdiction, I will be using the UN Declaration of Human Rights as the basis of this primer.

Article 19:

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.

Emphasis mine. Using this definition we learn that:

  • The right to free speech is an individual right.
  • The ‘freedom’ is from interference, specifically state interference.
  • The right applies to any opinion you may have; that includes things you may find vile.

This is the sum total of the freedom you are supposed to have. It is a protection against the State. That is it.

Public vs Private, Negative Rights, and Censorship

What constitutes a state interference though?

This too is a quagmire of centuries of case law and legislation in every respective State. What it generally means is that Citizens can say whatever they want in a public space without punitive retribution from their Governments. Public Space can be anything in the commons, like parks and streets. Some jurisdictions have even interpreted public schools, universities, and any publicly-funded institutions as public spaces where speech can’t be restricted. To restrict such speech is considered Censorship

The State can’t also compel you to say something you do not want to. This freedom extends to private property it self. The government can’t also compel you to use your property to propagate any speech you disagree with. You are not obligated to just accept anything. For example, imagine if you find the poetry of Lord Tennyson to be pedestrian and boring. And I am a fan. Suppose, you invite me to your home, where I start reciting ‘In Memoriam AHH’. You would be well with in your right to silence me. Even ask me to leave.

This comes under the purview of the right to free speech. It is not Censorship to banish a certain ideas, speech and persons from you personal property. It is not Censorship. Freedom of Speech is not freedom from social consequences of your speech. It is not a violation of this right to disagree, criticize, or otherwise express dislike for someone’s opinion. It is, in fact an exercise of this right.

So the next time your least favorite social media platform bans a user, any user, that is not Censorship.

This makes Speech a negative right with respect to the State. The State is not supposed to act with regards to speech.

Is it Absolute?

No. All jurisdiction carves out exceptions for ‘Public Harm’. Let’s take the US for example, which has some of the most liberal laws on Speech. These are some of the exceptions there:

  • Intellectual Property violations.
  • Harmful Images(usually pornography involving minors).
  • Slander/Libel(though the standards for both are very high).
  • State Secrets.
  • Trade Secrets.

Among others. No State grants absolute freedom of speech. However the degrees vary from place to place. Some States use ‘public harm’ as a weapon to curtail speech. For Example, Singapore’s founding father Lee Kwan Yew first passed restrictive defamation laws, and then silenced all his critics by suing them for defamation.

There are absolutists that claim that speech can’t do any harm, or the harm is worthwhile cost for liberty. Most of these people come from the upper echelon of British Society. But I am sure that is just a coincidence.

Freedom of Speech is a freedom interference and compulsion from the State. It is not absolute, and it is not a license to say whatever you want without social response. The government can’t compel anyone to accept any opinion. Freedom of speech is a legal right, and nothing more than that.

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