Is free speech a fundamental right and does it have appropriate limits? Pope Francis has provided the most memorable recent attempt at an answer. Yes, there is such a thing as a right to free speech but if you upset people you might have a punch travelling towards your face. But the Pope’s intervention is only one amongst many. In the wake of the recent terrorist outrages in Paris, and the massive responses to it globally, a debate has erupted about the nature of free speech and its appropriate boundaries. It is an intense and global debate, but, as often happens when human emotions are all aquiver, there has been more heat than light. In what follows, I will make an effort to untangle the issues before tackling the question I posed in the heading.
And in doing so, I am going to take two views of free speech. The first is what I call the internal view: free speech considered within the boundaries of specific countries and legal systems. The second is what I call the global view: free speech within the emerging global public sphere. I begin with the internal view.
Within fully established liberal constitutional democracies, free speech is the most fundamental of the civil liberties. And these liberties are usually given constitutional entrenchment: unlike regular laws, simple majorities in parliaments cannot do away with them; they are made close to impossible to get rid of by various constitutional devices. The fundamental liberties are also protected by a network of strong institutions – like an independent judiciary and the rule of law –as well as a public political culture that is passionately committed to the defense of these liberties.
In liberal political philosophy, free speech is a foundational or core value. Its justification is, at bottom, intrinsic. It is based on an unshakeable commitment to the autonomy of the individual human being. The idea is this: the individual human being has a right to think freely and to receive and impart information without undue restraint. But there is also an instrumental justification of free speech: that without it you are not going to have free inquiry, the growth of knowledge, the testing of what is true and what is not, as well as the requirements of individual growth and fullness. If you are interested in a classic statement please see John Stuart Mill’s On Liberty.
In existing liberal constitutional democracies, limits are seldom placed on free speech, but they exist. The limits can be procedural or substantive, and where they are placed varies from country to country. The formulation we constitutional lawyers use is that you leave these matters to the normal workings of the democratic process: politicians propose laws, they are debated, legally enacted, tested in constitutional courts and so on. If a restriction of free speech is contrary to the fundamental values of an established democracy it will either not become law or will not survive for long.
However, even in established liberal constitutional democracies two developments have arisen to challenge the untrammeled reign of free speech as a core value. The first is the emerging norm that we all ought to respect the feelings of immigrants with different beliefs and the dignity of minority cultures in multicultural societies. The injunction is: leave their sacred cows alone. Don’t needlessly upset them via, for example, poking fun at their prophets or religious beliefs and practices. At the same time, those who belong to these minority cultures are increasingly asserting a right not to be offended, a right not to be annoyed. They, in turn, are provoking a backlash, a re-assertion of the core values of liberal political philosophy, especially in countries with a tradition of militant secularism and anti-clericalism. The actions of militant secularists yell: ‘Nothing Sacred!’(See “Satire Lives” by Adam Gopnik).
The second development that is challenging a total commitment to free speech even in liberal constitutional democracies is what I regard as the widespread deployment of considerations of prudence in the face of prospective violence. Let me explain. Suppose you run a major global news organization based in, say, London, and suppose you are fundamentally committed to free speech, would you run lampoons of the Holy Prophet when you know that your correspondents might suddenly become fair game in many countries around the world? Prudence suggests: Don’t do it. Others denounce such displays of prudence as rank cowardice.
Finally, on the internal view, this all important point: many political communities in the world today are not liberal constitutional democracies. They might have constitutions that commit them to the great civil liberties, but the political culture actually privileges the right of the community over the individual. Some are theocracies; others are outright dictatorships. In all these places, free speech is not a core value. That is why much of the current global debate has involved a lot of mutual incomprehension between people living in very different political communities.
Now, let’s return to the global view. The truth is that if we still lived in a world where communication spaces were strictly national, with little or no leakage, the current debate would not be happening. But we now live in a world where global media, the Internet, mobile phones, satellite TV, all these new tools and technologies bring us information about what is happening within strictly national public spheres. A global public sphere is emerging, is growing, and is deepening too. The problem is this: there are no rules here, no law-giver, no Supreme Court. So, a battle over the norms that should govern the global public sphere has been joined.
Take two examples of the struggle. NGOs and CSOs sponsored by agencies and foundations in liberal democracies are active in other societies promoting free speech, working to support journalists and strengthen free media. The rulers of non-liberal political communities increasingly see this as unacceptable interference in their internal affairs, and they are acting to curb the activities of these groups. On the other side, people in non-liberal societies sometimes object violently to speech (movies, cartoons, novels!) taking place within liberal societies because they are aware of such speech and it upsets them. Think about it. They are asserting the right to block speech they find upsetting wherever it occurs. That is a stunning development.
Hence the header: who decides what is acceptable speech in the emerging global public sphere?
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Photograph by Will Marlow via Flickr