Throughout history, many have struggled to define, and in many cases, confine, the freedom of speech. This issue was particularly important to the U.S, as we were founded on principles of “free speech.” Moreover, U.S. ideals have paved the way for many other countries to embrace our fierce sense of fairness. Why, then, do we still have so many issues surrounding the freedom of speech? Why, even in the U.S., the supposed bastion of this right, do we have so many intricacies and controversies surrounding it? Perhaps we have made a fundamental error. While we have been busy trying to enforce the right to free speech for the last 236 years, perhaps we should have taken a macro-approach, examining instead what the right to freedom of speech is, how we define it, and how we delineate it. For the purposes of this question, and this paper, I propose a complete overhaul of our first amendment rights, to exercise this fundamentalist approach. I will create a new philosophy outlining the universal right to the freedom of speech, I will outline that right’s parameters, including limits, I will provide analytical tools to support the philosophy, and then I will test this new philosophy on historical and modern cases involving the gray areas of our current notions of free speech, not just for the U.S., but for the world. Through this synthesis, it should be noted that the “freedom of speech” is a very broad term. If we seek, as a global society, to stand for this important freedom of expression, we must first understand its implications. Thus begins our journey of understanding.
In keeping with our understanding of how we came to possess such a right as the first amendment, and freedom of speech in other countries, we must assess how the law came to be. Why do we have a system of such intricate rules? It is vital to understand the origins of our laws before we feel justified changing them. Before we take a more modern approach, we can take a look as far back to biblical times and Greek mythology to see origin stories of the law. The first version of this law was presented in Exodus 19, as Moses goes up and away from his heathen Israelites to receive the law from God. On the other hand, we can see another presentation of the formation of law in the Greek tragedy, The Eumenides, as family drama finds young Orestes subject to Athena and a courtroom of peers. In both stories, the law is given from a reputable source, but the ways the law is given are very different. The Exodus story presents a sense of ultimate authority, on top of a mountain with fire and stone, while The Eumenides presents more of a modern approach with both a judge and discerning jury, on a level courtroom with multiple citizens present. Regardless, both of these origin stories do not fit with the new model of communication rights and how I will present them. Because of this, we must create a new origin myth surrounding how the law came to be. On a fundamental level, we must understand that the law is not owned by any country; the law exists to enforce the inherent rights of all human beings, and thus the origin story of law must include people of all backgrounds. Therefore, when we explain the importance of law, it must be for the sole purpose of protecting citizens of humanity. The story of law’s origin must reflect this. Imagine, if you will, that several representatives from every culture gathered around a round table. Naturally, being the globalized and tech savvy planet that we are, they all got a Facebook invite. Furthermore, the room, which held the table, was large enough for every person to participate. The subject would not be a conversation about what the laws should be, but rather, what humans felt were fundamental rights that they had. They would spend time discussing their passions, what they couldn’t live without, and from there create a set of rules to include this freedom of expression. In this origin story, the law is not presented as an external creation, but rather an embodiment of human’s fundamental rights.
Luckily enough, others envisioned this idealistic origin story as well. The Universal Declaration of Human Rights, established in 1948, is a living document that does just what the new origin myth proposed; it presents fundamental rights that all humans share. It strives for, “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” Law exists in the document for the sole purpose of protecting the rights of others. There is no excess in law and legal jargon like we see today in the United States. Our country, undeniably, has paved the way for the creation of documents like the Universal Declaration of Human Rights, although early adopters of communication justice took a very narrow approach, like trigger-happy English philosopher William Blackstone and his love for a bad tendency approach, and more modern Alexander Mieklejohn with his love for separation (and protection) of political speech, but not personal speech. It took our society many years to strike a balance between free speech and protection of others, and I believe our increasingly globalized society cleared channels of communication for modern philosophers to advocate for a more open approach to first amendment rights.
C. Edwin Baker, professor of Law at the University of Pennsylvania, is a more modern philosopher embracing this universal right to free speech. In his book, Human Liberty and Freedom of Speech, he asserts that the law exists to maintain human rights, not uphold truths, as “…there is no such thing as an objective, discoverable ‘truth,’ people are not always rational, and different people inevitably perceive the ‘truth’ in different ways.” Baker reclaims the principles set forth in my origin story, and in those of the Universal Declaration of Human Rights. He proposes a new “liberty model,” in which “the [United States] free speech clause protects not a marketplace, but rather an arena of individual liberty from certain types of governmental restrictions. Speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” This emphasis on the individual, universal right to free speech and expression is more along the lines with my origin story and personal philosophy, but there is still a problem with Baker’s philosophy. He leaves little room for protection from harmful forms of “other self-expressive conduct,” as he put it himself. In other words, Baker’s approach protects many people, but looks past the reality that free speech, in the form of physical action, can be severely harmful. Thus, we must pull the reigns back a bit to enforce our origin story, in which the protection of other’s rights (namely, here, the universal right to freedom from harm) is of the utmost importance.
Enter Thomas I. Emerson, Yale law professor and proponent of an expression-action theory, in which expression is completely protected, while actions which stifle other’s expressions are limited. Emerson published his groundbreaking philosophy in 1970 through his book, The System of Freedom of Expression. He stated that, “The central idea of a system of freedom of expression is that a fundamental distinction must be drawn between conduct which consists of ‘expression,’ and conduct which consists of ‘action.’ ‘Expression’ must be freely allowed and encouraged. ‘action’ can be controlled, subject to other constitutional requirements, but not by controlling expression.” With that, Emerson’s model fully embodies our new origin story. It protects a system of freedom of expression and speech to promote self-fulfillment, discovering the truth, making democratic decisions, and achieving a more understanding community. To create a new philosophy of the universal right to the freedom of speech, I would take Baker’s universal approach, emphasizing that there is no “truth,” and fuse it with the practical limitations set forth by Emerson, distinguishing fully protected expression through speech from a slightly more limited approach to expression through action. Thus, a new philosophy is born.
This new philosophy does have some fine points, though. There are certainly times, as mentioned before, when your expression my harm someone else or inhibit their expression. Emerson’s book outlines four types of behavior that may not be protected under this new philosophy. First, speech that is seditious in nature is protected, but can be punished if it consists of explicit advice, instruction, or persuasion that put that seditious behavior into action. For example, burning a U.S. flag is protected, but telling someone where a public official would be, handing them a gun, and telling them they need to shoot the official would not be protected. The second type of behavior is obscenity. This is also mainly a form of expression and is therefore protected, unless there is action consisting of live conduct. Third, provocation to anger, or fighting words, are not protected, although it is not because they may be worthless – it is because they may be harmful to others. Last, Emerson does not protect defamation if it is private, and not concerning public issues. This private libel is not protected, for Emerson, if it harms feelings or shifts expression to action. These four limitations do not encroach on the freedom of speech, but also protect more vulnerable populations, and should therefore be adopted into my new philosophy. That being said, these stipulations could allow others to argue that someone may have a bad tendency, but the entire principle of the universal model is to enable all people the have the freedom of speech. With that, we must also espouse scrutiny levels to make sure that tendency is not reason enough. We must only prevent direct or immediate physical harm, emphasizing that harm is not the same as a moral or religious offense. Any further restriction would also limit the universal right to the freedom of speech, by preventing the speech or expression before it took place. In all cases, the burden of proof rests with the plaintiff, or accuser, and never the defendant, or speaker. With these conditions, I would hereby summarize a new philosophy (and law) of the universal right to the freedom of speech and expression:
“We, the united citizens of the world, proclaim the right to freedom of speech and expression, embracing the many truths our citizens hold, and protecting ourselves from governmental restrictions and physical harm. Our human expression, through words or actions, are freely allowed and encouraged, barring expression which explicitly seeks to disrupt this law (and those involved in its organization), live obscene expression which repels others from gathering publicly, speech that is purposefully physically or emotionally harmful to others to the point of pain, and private defamation not concerning the public well-being and progression of society. Freedom of speech and expression must be upheld despite bad tendency or instinctive precautions, and will only be limited to prevent direct or immediate harm, or direct or immediate stifling of another’s rights.”
This new universal freedom of speech and expression is the basis for our judgments of the next five cases. These case studies were specifically chosen to demonstrate that even a law with good intentions, like the one above, could have some gray areas. In keeping our “round table” theme of the origin of law, we must first test many of these “gray area” cases to better prepare ourselves for what cases may come, and to evaluate the merits of this new proposed universal human right. Each case will present a fundamental question about the intricacies of the freedom of speech and expression set forth in the new law.
With that, we begin with the first question: Which is more appropriate and just? To shape laws around community and religious or cultural traditions, or to shape the law around a universal human right? This question is illustrated by the case of Asia Bibi. Asia Bibi is a Christian woman who is currently serving time in a Pakistan jail because of her blasphemous remarks. Asia Bibi lived in a rural community in Pakistan surrounded by Muslims, who ostracized her for her beliefs. One day, while fetching water with other women, Asia drank from the water and as a result, none of the other women did because they viewed Christians as “unclean.” In response to this insult, Asia told the women that, “The Quran is fake and your Prophet remained in bed for one month before his death because he had worms in his mouth and ears. He married Khadija just for the money and after looting her kicked her out of the house.” For this statement, Asia was sentenced to death. According to our new established law, Asia should be free to say whatever she wants to these women about Mohammed, as long as it does not cause physical harm, or emotional harm to the point of pain. These women went on about their daily routines and were offended, not harmed. Furthermore, the Universal Declaration of Human Rights, one of the documents in agreement with the new law established for this paper, states in article 19 that, “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.” Furthermore, even more radical and limiting documents like the Cairo Declaration of Human Rights, which follows Muslim tradition, states in article 1 that, “All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. The true religion is the guarantee for enhancing such dignity along the path to human integrity.” So regardless of religious preference, or offense, what Asia did was not out of line, Furthermore, it is important to note that the universal freedom of speech and expression set forth in this paper emphasized that there is no universal truth; what Asia said was a mere opinion, just as the Muslim women’s thoughts about and actions toward Asia were also justified and based on opinion, and therefore protected.
The next question we encounter is, when is seditions speech unprotected? Seditious speech is of special concern to this new law and its implementation not because it keeps the government intact, but primarily because it helps liberate us from other forms of governmental control that may spur from seditious speech, like a rebel takeover or complete anarchy. With that, we will examine the case of American-Muslim scholar Ali Al-Timimi who gave speeches to a group of friends criticizing the American government. Among his speeches, he claimed the explosion of the space shuttle Columbia was a sign, that the events of September eleventh were a wake-up-call, and he instructed his friends to prepare for resistance of American plans to intervene in Afghanistan. As a result of these speeches, Al Timimi’s friends trained with the Taliban to fight in Afghanistan against American troops. So, what we must ask is, did Al Timimi’s speech cross the line and, as our law states, “explicitly seek to disrupt this law (and those involved in its organization)?” If we were simply looking at this one line in the law, it appears that Al Timimi should be punished. But, we also enlisted tools like scrutiny levels to help with cases like this. The law, which was created earlier in this paper, also states that, “We must only prevent direct or immediate physical harm, emphasizing that harm is not the same as a moral or religious offense. Any further restriction would also limit the universal right to the freedom of speech, by preventing the speech or expression before it took place.” Al Timimi did not cause any immediate harm, and although his words had grave consequences for the people who uphold our freedom of speech and expression, we must use strict scrutiny and immediate danger levels to evaluate all cases. This deviates from U.S, precedent of Dennis v. United States, where it was upheld that in times of war, minimal scrutiny is to be used in determining threatening actions. Although the threat of danger is amplified in times of war, we must not abandon the law established in order to protect all people equally, and that includes equal protection regardless of the political or social climate.
The next question we must ask surrounds the right to sexual speech, or does such communication cause moral harm? With this question, we will examine a modern day example of adult sexual speech and pornography, Cam4.com. Cam4 could best be described as a YouTube for the sexually deviant. Members create video accounts and express themselves sexually, usually through intercourse or masturbation. The site is positioned as a community, rather than a pornographic site, though many seem to disagree. For this portion of our law evaluation, I will note that in the past, sexual speech has been segmented into two groups: those above 18 and those below 18. Those above this age can access Cam4, but those under 18 cannot. 1968 case Ginsberg v. New York stated that even sexually harmful speech that is not obscene for adults should be banned from minors. Although minors can be seen as a special party to any law because of their mental development and impaired judgment, they deserve the same protection as any other human in the new law outline today. To subject them to any special treatment would mean that there was some moral, universal truth that they did not possess, which does not flow with the law presented. One might also dispute Cam4 not because of its accessibility to minors, but also because in the law outlined in this synthesis today, it states that it does not protect, “live obscene expression which repels others from gathering publicly.” Could one argue that the Internet is a public forum? While this is the case, it is a public forum where one can easily leave without repelling others from gathering publicly. What I mean is that Cam4 is a community to its users, so barring its use would be repelling them from gathering publicly. If the members of Cam4 performed their acts in Seattle Center, it may be different because other may have obligations to be at Seattle Center, such as employees, but no one has an obligation to visit Cam4 on the Internet. Therefore, by claiming Cam4 s a public gathering place that can be left by those who do not wish to be there, Cam4 would be protected under the new universal right to freedom of speech and expression.
Our next question is weather or not we should protect speech that causes reputational harm. With this question, we examine three systems set in place to protect people from libel and slander, or words and speech that cause reputational harm. The U.S. model fits with the new law set forth today (with some exceptions), while those of Britain and Canada limit speech and would therefore not be upheld. The U.S. model was developed through a series of precedents. The first is that of Doe v. 2TheMart.com, which held that the first amendment right to the freedom of speech includes the right to speak anonymously, and that right is upheld above anonymous libel speech. Because in the new law it is mentioned that there is no universal truth, we would also uphold this precedent for the simple fact that for our purposes of evaluating this new law, there is no reason to reject speech with libel unless it causes physical harm to the audience. This brings us to the case of Rose v. Hollinger International, inc., which holds that the current court system must differentiate between claims with fact versus claims with opinion. In the new law outlined today, this precedent would be overturned for the same argument above; it is unjust to claim there is one universal truth, for this slippery slope would lead to religious persecution and limitation of certain group’s rights to freedom of speech and expression. The last precedent of the U.S. model comes from 1974 case Gertz v. Welch, which held that the plaintiff has the proof of burden in cases, especially libel and slander cases. The proposed law would also uphold this precedent. The British and Canadian models, on the other hand, limit the new law for the universal right to the freedom of speech and expression. These laws make the speaker also have the burden of proof, and there is absence of a press-protective constitution, which is particularly alarming considering this universal law, was set in place for the free exchange of ideas and information. For the reasons above, the new law would follow the current U.S. model, with some adjustments to protect libel or slander that does not cause physical harm.
Lastly, we will ask the question, “Can useless or violent speech be protected?” Under this model, we will examine the ever-controversial crush videos and the U.S. case of the U.S. v. Robert J. Stevens, a man who produced and distributed videos depicting animal cruelty. This case was overruled by the Supreme Court, which stated that the films, although horrifying, did not create a bad marketplace, meaning the acts of animal violence did not exist for the sake of the videos being produced; they were just a byproduct. Therefore, the videos themselves did not create an unhealthy or disruptive marketplace. Also, the supreme court protected this expression because essentially, speech and acts are two very different things, they are just blurred a bit more because of new technology like video, which depicts acts but is essentially speech. This is also an important distinction in the law proposed today: speech, unless it immediately harms another human, is protected. Since the videos did not actually harm the animals, but instead just depicted the violence, the videos are protected.
What we learn from these cases, and the new proposed law protecting the universal right to the freedom of speech and expression, is that the value of speech will always trump the social cost of limiting it. Although there are many cases beyond the difficult ones we outlined here, it is important to see that this new law would exist to protect this right to freedom of speech and expression, and any concessions would result in a slippery slope leading us once again to the current U.S. system which consists of hundreds of laws, followed by hundreds of exceptions and precedents for these laws. If we take a step back from the madness, and realize that the laws we made exist to protect us, and not create bureaucracy, I believe we would have a more fair law system not only in the U.S, but worldwide. Although my new proposed law may fall apart or become more fragile because it has less parameters than the many set forth in the U.S. model of precedents and exceptions, I believe it is important to uphold and idea, and a true belief, that laws should not exist to create bureaucracy or more governmental structure; in fact, laws should only be created to prevent further government encroachment on the way people choose to live their lives.
Our world is changing in a profound way because of the new media landscape. The first amendment was made before the dawn of our technological age, and because of this we must re-assess our law. We must go back to our origin stores and ask, “Why do we have a law system in the first place?” and “What do we home to gain from the law?” Ultimately, it is my belief that the first thing we look for in any law is protection of our fundamental human right to the freedom of speech and expression, regardless of culture or location. Fortunately, this question is being presented more and more in our modern U.S. court system. In 2010 case Brown v. The Entertainment Merchants Association, Justice Alito presented his unrest with maintaining our current precedents to judge new media cases: “In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.” In addressing new forms of media and increasing technology which enables more communication, Alito shows that the media landscape is ever-changing and does not show signs of stopping. His point is important, and it is my hope that more evaluation of U.S. law would be made, in lieu of a universal law like the one I proposed today. This universal law could come to fruition, perhaps, if leaders in the U.S. re-evaluated our system, just like Alito, and chose to go back to our roots and ask, “What is our philosophy about the universal right to the freedom of speech?” Asking questions like this will allows us to constantly work toward a universal right to speech and expression like the one proposed today.
