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Should the State Exercise Control over the Expression of Individuals?

The right to freedom of expression is commonly misinterpreted as a free pass which allows one to say or do as they please, without facing repercussions or sanctions. Whilst this is somewhat true, it is, nonetheless, a misconception: as Tom Bingham rightfully states in his book The Rule of Law, “The rights of the individual must be set against the rights of others, and this calls for the drawing of lines.” Whilst, for the most part, an individual is completely free to express themselves, for example, by following a religion, attending a protest, etcetera, there are limits to what forms of expression the state can allow before inadvertently sacrificing the interests of society in the name of the individual. Thus, this essay will outline the meaning of freedom of expression, and go on to argue why in some cases, the State must exercise control over the expression of individuals for the benefit of society, and outline the appropriate instances for doing so.

What is Freedom of Expression and Why is it Important?

Freedom of expression, as set out in Article 19 of the Universal Declaration of Human Rights (UDHR), is "The right to freedom of opinion and expression…freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." This definition is the cornerstone of our right to freedom of expression and allowed us to establish it as a lawful right. However, to make a convincing argument about the State’s role in controlling freedom of expression, the term "expression" must be clearly defined.

Generally, “expression” refers to a mode of outwardly displaying one’s thoughts, feelings and opinions. This could be through means of religion, linking to Article 18, political action, linking to Articles 20 or 21, speech, or simply a mode of dress. An individual expresses themselves by communicating their inner values to the world. Freedom of expression, thus, refers to the right to communicate one’s values to others, without facing censorship or sanctions. Such a right is a vital component of any democracy: democratic elections simply cannot take place in a state where people do not have the freedom to choose a political party that aligns with their values, nor express their political opinion and form parties in the first place. The right to freedom of expression is also a vital component of non-political life, insofar as it allows us, in its simplest form, to be ourselves without facing needless and oppressive intervention from the State. It cultivates diversity and innovation, characteristics which allow societies to thrive economically and culturally.

The Problems with Unrestricted Expression

The importance of freedom of expression cannot be understated, not only as an inalienable human right but also as a tool for creating a prosperous democracy. Nonetheless, as previously stated, unrestricted freedom of expression severely threatens society by jeopardising the benefits that monitored freedom of expression provides, and freedom of expression itself. Such a statement initially appears paradoxical but clarifies itself upon considering that unrestricted freedom of expression would permit harmful practices and ideologies in the name of self-expression. For instance, it would enable extremist political organisations to freely exercise their anti-democratic or anarchical ideologies, thus undermining democracy, or enable hate groups to freely attack minority groups, preventing others from expressing themselves. These are extreme examples, but an accurate picture of the chaos that would arise if the right to freedom of expression was interpreted as an absolute. An element of government is therefore intrinsically necessary for the preservation of order and the protection of the rights of the majority, insofar as it prevents the subversive minority from abusing these rights and freedoms.

When Should Expression be Restricted?

Now that the dangers of total freedom of expression are clearly outlined, it is important to consider the forms of expression that critically endanger societal interests and freedoms, thus requiring sanctions as previously established. This will naturally differ regarding the nature of each instance, therefore, this point is best illustrated by a series of examples to avoid generalisations.

British society highly values freedom of speech, demonstrated in that we are free to criticise government policy, large companies, perceived corruption, etcetera, a right which unfortunately is not enjoyed in all countries. Nonetheless, even in our generally free society, there is some grey area which arises when dealing with offensive speech.

Malice of any form is rightly considered to be unacceptable in any civilised society and thus must face sanctions to reassert this fact. However, the State should not criminalise the act of ‘offensive speech’, without further qualifications as to its nature. Doing so would be an inappropriate way to control freedom of expression, due to there being no mode of ascertaining if someone will be offended by a comment, regardless of how harmless it truly is. Criminalising offensive speech without qualifications would lead to the rise of ‘Heckler’s Veto’, thus restricting freedom of expression. This is because it allows the ‘Heckler’ to have authority over another person’s speech: if someone were able to incite sanctions, public or private, upon another by making an arbitrary claim that their speech was or will be in some way offensive, the right to freedom of expression would be undermined severely. The nature of criminalised offensive speech must be clearly determined in statute law, to distinguish between the very different levels of harm that arise from simply insulting someone’s outfit, as opposed to expressing hatred for a minority group.

Offensive speech against a minority group can and absolutely should be sanctioned, on the basis that 1) Its content is often untrue, 2) It causes significant harm to said minority groups, and 3) It harms society as a whole in that it has the potential to inspire similar prejudice in others. In the UK, hate speech is forbidden by law, and can result in fines, imprisonment or both. Furthermore, most companies will have strict anti-discriminatory policies, thus any employees found making hateful comments will face sanctions privately (i.e. not enforced by the State) such as the termination of their employment. This is generally accepted as an appropriate measure to ensure our society remains diverse and tolerant, free from oppression and discrimination. Failing this, those with prejudice would be free to unfairly subject minority groups to relentless abuse and marginalisation, thereby harming the interests of a society that draws great benefits from diversity and inc