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 inclusion, not to mention the well-being and interests of the minority groups in question. Therefore, it is clear that in the case of speech, total freedom of expression without some degree of state intervention creates more harm than good.
As previously stated, freedom of religion and religious expression is fundamental in ensuring each individual has adequate personal freedoms and fostering a pleasant, diverse society. The presence of alternative religious beliefs does not threaten a society but rather uplifts it, exposing its citizens to multiple ways of perceiving the world around them, and opening minds. There is, however, a point where unrestricted religious expression can too begin to negatively influence society, thus making it viable to restrict it if necessary.
For example, Article 18 of the UDHR states that "everyone has the right to freedom of religion or belief" therefore implicitly stating that in no way should a particular religious group intend to force others into their school of thought. Thus, the State is free to restrict any form of religious expression that influences the beliefs and practices of others. Moreover, several religions may hold beliefs or practices that conflict with the interests of wider society, such as the Rastafarian practice of smoking cannabis, or ‘wisdom weed’, as a religious rite to increase spiritual awareness. Naturally, Rastafarians are not exempt from laws against cannabis use and will face the same penalties as non-Rastafarians if convicted. Debates about the criminalisation of cannabis aside, drug use is something that should not be encouraged or promoted due to the health risks it poses; doing so would certainly harm society, thus allowing the State to restrict freedom of religious expression in this case. On the other hand, the Rastafarian practice of growing dreadlocks is protected by law, in that Rastafarian prisoners are not required to shave their heads upon entry. This is because it is a form of religious expression that does not threaten society or other individuals, meaning that Rastafarians have the right to maintain their dreadlocks. There are several other examples of religious expression that must be prohibited by law due to their negative impact on society, which illustrate the importance of restricting freedom of expression to a certain extent to avoid grave consequences.
Political extremism is one form of self-expression that can be confidently classified as incredibly harmful, insofar as it poses a major threat to democracy and personal freedoms, therefore meaning it is appropriate and necessary for the state to sanction it. The State must do everything in their power to prevent the rise of extremist groups and the spread of extremist views, whether on a small or large scale, to prevent its institutions and core ethos from being undermined, particularly in a time of crisis.
The most well-known precedent to this effect is the rise of the Nazi party, whose appeal was once limited to the political fringes of Germany. This was only possible due to the devastating impact of the Great Depression on the post-1929 German economy, and the underestimation of the severe threat the Nazis posed to democracy by political rivals, leading to Hitler having the position of chancellor handed to him. Hitler’s rise to power exemplifies how vital it is for the State to suppress any manifestation of extremist, anti-democratic politics, despite how inconsequential or nonsensical they may appear. "Desperate times call for desperate measures" is a phrase frequently used to refer to the appeal of extremism to the masses when faced with national crises. This is generally due to the widespread feeling that the state is simply not rectifying the situation adequately, subsequently creating an opening for extremist politicians to exploit, tugging on the emotional sensibilities of the masses and presenting their radical solutions in a way that makes them appear to be the only option.
Particularly considering the current unstable political and economic climate of our country, allowing extremist organisations to operate freely would be incredibly dangerous, and although they may appear harmless, severely threatening the rights and liberties of everyone within the UK. For this reason, it is vital that the State suppress extremist organisations through legal sanctions, rather than leaving them to fester due to the naive assumption that they will not manifest themselves as a major threat.
The right to freedom of expression is fundamental to any democratic society, so, therefore, must be protected staunchly by the state. Nonetheless, to do so, the State must restrict some forms of expression that put the interests of society at risk and threaten others’ human rights, including but not limited to hate speech, certain religious practices and political extremism. This ultimately ensures that democracy is not undermined, by way of allowing each individual to feel valued, secure and comfortable to express themselves, their religion or their opinion. Although restrictions should only be imposed in cases where it is certain that harm is being caused, the control of harmful expression is a valuable tool that the State possesses, permitting it to cultivate freedom of positive and meaningful self-expression amongst law-abiding individuals.