Freedom of Expression - Essay Example

1 Freedom of Expression Introduction Don't be misled by the allure of the phrase "freedom of expression"; it is a double-edged sword that can cut either way. Freedom of expression was originally intended to be the "central indisputable element" (Fuller 1) of social life. Used responsibly it can create the harmony that it was meant to, between people of different races and religions. Used injudiciously, it could set the world on fire. Can any state set parameters within which this right should be exercised Freedom of expression ranks among the inalienable rights. It is the basic tenet around which much of Western society has been built. It is an individual's most essential political right and the essence of democracy. Freedom of expression is what makes it possible for even the most ordinary of citizens to make a political expression, even if that expression is against the state itself. It is this right that makes it possible for such an individual to hold an opinion that is different from the opinion of the majority. It is this freedom that gives people the power to protest inequality and oppression. From this freedom emanate all the other freedoms. In a democracy, probably the most important consequence of the freedom of expression is to compel governments to the dialogue table, and it is because of this that governments are forced to consider the opinions of people in its decision making. This works to the advantage of both people and the government - if indeed one can make a distinction between the two. People have the advantage of ensuring that all or most governmental decisions consider their opinion. 2 On the other hand governments save themselves from the risk of taking decisions that are not in sync with public opinion. In Europe freedom of expression is protected by article 10 (1) of the European Convention of Human Rights (ECHR). "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" ("The European Convention on Human Rights"). Contrary to what some people may think this freedom of expression is guaranteed not only to individuals. It is equally applicable to the media such as the press, radio and television. And this freedom relates to the freedom of opinion, freedom of information, and the freedom to criticize. Freedom of Opinion and Information The first paragraph of Article 10 of the ECHR elucidates that freedom of expression shall include the "freedom to hold opinions and to receive information" ("The European Convention on Human Rights"). There is more to this freedom than one initially realizes. The freedom to hold opinions, among other things, also means spiritual freedom. This freedom includes the freedom to hold and report a belief. This belief can be critical or appreciative or merely judgmental. These beliefs or opinions can relate to philosophy, science, literature, politics, ethics and several such other aspects. This freedom applies as much to giving an opinion, as to receiving one. 3 Freedom of expression includes the freedom to information. This freedom applies to receiving information, as it does to the dissemination of information. This freedom is an offshoot of the freedom to opinion. Yet another off-shoot of the freedom to express opinions is the freedom of criticism. This is a significant aspect of the freedom of expression as it gives even people in the minority the right to hold and express views that are not in consonance with the majority. This Freedom is Not Unconditional The freedom of expression is however not a platform for unfettered individual and institutional will. There are conditions. The freedoms guaranteed under Article 10 of the ECHR carry with them "certain duties and responsibilities". Exercise of this freedom must be within the parameters of certain procedures, conditions, controls and rules of infraction. These parameters are laid down by law in the wider interests of the security of a country, its territorial sovereignty, the public at large, conditions of public health, standards of morality, the interests of law and order, maintenance of secrecy when mandated and for upholding the esteem and equitability of the judiciary. The right given to individuals and institutions under Article 10 of the ECHR is not unconditional. On many occasions the state is called upon to lay down certain laws that give national interests precedence over individual and institutional interests. The extent to which a state interferes to guarantee freedom of expression to individuals and institutions on the one hand and the extent to which a state enacts laws to curtail this freedom on the other hand, are matters of controversy and debate. There are states that find 4 themselves at both extremes. On the one hand you have countries like Italy that will not curb the right to expression even though that right is used to diatribe. Little or no state interference In Italy Oriana Fallaci a 76 year old writer is at the vanguard of Europe's neo racism. She writes "the idea of moderation in Islamis a fraud and illusion. Tolerance of Muslims is a comedy; integration by them is a lie; multiculturalism is a farce ("Oriana's Thread" 46)". The opinions of Ms. Fallaci have not proved to be of any significant consequence one way or the other. What is worthy of note is the support given to her. This is an instance of the other extreme - non-interference by the state in the expression of one's opinion. Were Ms. Fallaci's comments the equivalent of the dissemination of an opinion Was she within her rights under the provisions of Article 10 paragraph one Was the Italian State justified in ignoring the seemingly virulent comments Could the minority have taken recourse to paragraph two of Article 10 Did Ms Fallaci's comments amount to defamation State Interference in What May Not Be Said At the other extreme is the state's interference in what may and may not be said. On January 31st 2006 the Religious Hatred Bill failed to make it through the House of Commons. Had the bill become law it would have been a "dangerous infringement of free speech ("Censorship" 16)". Britain is trying to live a contradiction. On the one hand it professes almost religious faith in the freedom of expression. And on the other hand it tries to lay down the conditions in which such a faith is to be followed. 5 The Religious Hatred Bill is already in existence. The bill was originally intended to protect Jews and Sikhs against racial incitement. The new bill was intended to include Muslims. Coming in the aftermath of the London bombings, this gave anyone who wanted it, the right to say anything they wanted to, against Muslims. That not withstanding, the freedom of expression was not to be fettered. The most common reason for restricting the privileges under Article 10 is the protection of the right of others. Such restrictions would apply even though the rights of others are not clearly specified. An instance of such unspecified right and an unspecified slight is a British poster that shows a Muslim woman in full hijab with a caption that read "mind the suicide bomber". This is the sort of jibes that the Religious Hatred Bill was meant to protect the minorities from. Free expression was restricted when it involved loyalty and fidelity. As such employers have the right to restrict employees, if that free expression was liable to violate the other requirements of employee loyalty and fidelity. However in the case of Ahmed v UK, where it was attempted to restrict the rights of members of the public, the judges found that, when grounds under Article 10(2) were too "unclear and indeterminate" the operation of the Article itself may be in jeopardy. (Vickers 87) To both the opponents and proponents of unfettered freedom of expression, it has always been a puzzle. Often it may appear as a contradiction. Libertarians often refer to this contradiction as the "paradox of freedom". This conflict is best explained in the statement by John Stuart Mill in his essay On Liberty in Utilitarianism Etc: ". . . there ought to exist the 6 fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered (Mill 106)". There is no agreement on the extent to which the state can interfere to guarantee either the right of an individual to the unconditional freedom of expression, or the extent to which a state may interfere to curb these freedoms in the interest of the other matters of state. France's Interference for Equality and Secularism In early 2004 France banned the Islamic headscarf from public schools. Although the general opinion was that the ban primarily targeted the Muslim minority, the ban also included Jewish skullcaps and "conspicuous" Christian crosses. The reason for these bans, according to French President Jacques Chirac was that public schools were a "closed universe" and secularism was not negotiable (Smith 7). France and secularism have been inseparable for a very long time. Issues relating to secularism only surfaced at times of crisis. Instances of such crisis are the Martin Scorsese film The Last Temptation of Christ, the use of the condom and the pill and the "headscarf affair". The headscarf issue is not a new one. Neither is the issue of secularism. The headscarf issue first came up in October 1989 when three girls of the Gabriel-Havez college were refused entry for insisting on wearing the hijab. The history of France and secularism date back to the 18th century. In 1789 republican views were based on "reason, freedom, religious tolerance, a strict separation between the public and private domains". Article 10 of the Declaration of the Rights of Man and the Citizen says that "nobody should be persecuted for their opinions or their religious beliefs, provided they did 7 not cause disturbance of public order under the law". In order to balance respect for religious beliefs and their practice within the parameters set by law, religion and state were seen as separate entities. Laws of 1901 and 1905 banned secular associations from taking part in religious activities. Based on this there were private schools and there were public schools. Religious instruction was not allowed in public schools. It is against this background that headscarves, skullcaps and crosses were banned. Therefore it appears that the ban is not a recent brainwave that was the consequence of recent events, but a continuation of a century old principle. (Perry 176-177) Offensive Public Performance: Theo Van Gogh's Submission A classic example of a state's tolerance of a public performance insensitive to the religious and racial sentiments of others is Theo Van Gogh's "Submission". This brief movie - if one may call it that - was based on the personal experiences of Somali-born Muslim woman Ayaan Hirsi Ali. Van Gogh was a firm believer in the freedom of expression. Although he later became branded as a critic of Islam, Van Gogh was an example of an intolerant man in a tolerant society. In fact he was not very kind to women, Jews and most other religions. However what Van Gogh did not consider was that his exposition of violence against women in many Islamic societies did not find favour with the Muslims. This was to be expected. The film depicts naked women behind semi-transparent veils, telling their story to Allah. Everyone knows that Muslim women the world over are expected to wear the hijab. Against this 8 backdrop, how could either the individual or the state believe that such unfettered freedom of expression, would not hurt the religious sentiments of a minority After all one of the primary purposes of the freedom of expression was to safeguard the interests of minorities. ("Dutch Model" 22 - 24) November 1996 Wingrove vs. United Kingdom (case n. 19/1995/525/611). This case relates to the short film "Visions of Ecstasy" by one Wingrove. The film is a depiction of St. Teresa of Avila, a Carmelite nun who founded many convents, and is supposed to have experienced compelling visions of Christ. The film actually shows a young actress in the garb of a nun performing erotica, with the body of Christ in the background. She is then joined by another young woman who is almost naked, performing acts that only add to the eroticism. The action then shifts to the body of Christ which seemingly responds to the attention that the young woman is paying it. This film was submitted to the British Board of Film Classification, which is the relevant authority for classifying films. The Board promptly rejected the application for classification on the grounds that the film was "obscene within the meaning of the Obscene Publications Acts 1959 and 1964" and for "infringing other provisions of the criminal law". Blasphemy was the offence cited under criminal law. Blasphemy is defined as anything "contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible". Wingrove applied to the Commission wanting to take recourse to Article 10 - freedom of expression. The contention of Wingrove was that the refusal by the British Board of Film Classification to certify this film was a violation of his right to disseminate ideas. 9 The Commission while rejecting Wingrove's application reminded those concerned that Article 10 paragraph 1 guarantees freedom of expression whether it relates to religion or any other matter. However the commission also pointed out that this freedom of expression must satisfy inter alia the requirements of paragraph two of the Article - protect the rights of others. Freedom of expression did not mean that it gives one the right to offend the feelings and convictions of others. While Theo Van Gogh had the right to disseminate an opinion, he simultaneously had a duty and responsibility to respect the sentiments of the minorities, which Article 10 precisely intends to protect. Blasphemy should be defined from a wider scope to include the tenets, dogmas and sentiments of all religions. (Scalabrino 26-29) Offensive Speech: Turkey's Interference in Expression of Religion At the other extreme is Turkey. On the face of it, it would appear that the state is quite intolerant of the freedom of expression as it applies to religion. It must be remembered that freedom of expression "is an intrinsic feature of any genuine constitutional democracy, in which the power of the majority is constrained by the interests and aspirations of the minority, and where the legitimacy of state coercion depends in every case on its compatibility with a public scheme of just governance"(Fuller 1). Turkey was both suspicious and intolerant of the free expression of religion by its Syrian Orthodox Christian minority, that it termed their activities as "a plan to cut the ties of our citizens with the (Islamic) faith". This was the essence of a state sponsored sermon that was distributed to 10 75000 mosques, to be read to the faithful. Was the free expression of spiritual opinion by a minority not in the best interests of its territorial sovereignty Offensive Speech: The Imams of Britain For many years a few imams in London attracted thousands of the faithful by their fiery speeches. And the speeches were invariably a call for jihad. Even after September 11, these imams continued to make public speeches asking the faithful to train for the holy war. This is an instance of unfettered freedom of expression. Offensive Speech: David Irving At the other end of the spectrum is Austria. Apparently the state sets guidelines for what can be expressed and what cannot. An example of what cannot be said, is the denial of the Holocaust. Denying that the Holocaust happened is a crime in Austria. It is punishable with a maximum sentence of ten years imprisonment. David Irving, a historian of sorts, publicly denied that there were no Nazi gas chambers in Auschwitz, Poland. For this denial, Irving was sentenced to three years imprisonment. Irving it is said is not one of the respected academicians. He was by some accounts a hog for the limelight. However in spite of his notoriety many feel that the sentence was rather harsh considering that Irving was only expressing his opinion. While it is alright to hurt religious and racial sentiments in some parts of Europe, it is a crime in others. ("It really happened" 48) Offensive Publications: The Danish cartoons When it comes to freedom of expression with little heed for the sentiments of minorities, there is probably nothing to top the Danish cartoons. They were so plainly hurtful, that even 11 moderate Muslims were upset. By some accounts this is an instance of a botch that is more the result of ignorance than malice. In 1985 in the case of Otto-Preminger-Institut v Austria, Innsbruck's Otto-Preminger-Institut was intending to screen a film Das Liebeskonzil which was based on a 1984 play by Oskar Panizza. Panizza's play belittled God, Jesus Christ, the Virgin Mary and the Pope with his hurtful cartoons. Acting on complaints received about the company's intended screening, the local government banned the screening. The European Court upheld the ban on the grounds the film was offensive under Article 10(2). By the same yardstick the Danish cartoons were in disrespect of the sentiments of the minority Muslims. The cartoons on the one hand may have been the test of the extent of the freedom of expression. But the flip side was by no means humorous. Not only did the government not pull up the Danish newspaper Jyllands-Posten, it did not stop their publication by other papers. ("Reaping the whirlwind" 48) Conclusion Article 10 (1) of the ECHR gives individuals and institution the freedom of expression. This right includes the right to form opinions and the right to impart and receive information. Article 10 (2) defines the ambit within which this right should be exercised. This is clear enough. What is not clear is the extent to which a state should or should not interfere to both guard the right to expression and prevent its misuse. Striking a balance between too much and too little interference is the nub. 12 Article 10 (2) begins with the basic guidelines for the equitable use of the right to expression: duties and responsibilities. While this also refers to the responsibility of the state to ensure the fundamental equality of its citizens, it is incumbent on the citizens to use this freedom responsibly bearing in mind their duties and responsibilities to others. There are numerous instances of irresponsible actions and violent reactions. Both action and reaction are forms of expression. If only individuals could apply their mind a little and give due consideration to the sentiments of others, inter racial and inter religious tensions could be avoided. No matter how impartial a state may want to be and no matter what laws it may impose to ensure the common good of all its citizens, in the final analysis it is individuals that hold the reigns and create the direction in which societies move. Works Cited "Censorship wasn't all bad." The Spectator 4 February 2006: 16. Fuller, Lon L. The Morality of Law. revised ed. Connecticut: New Haven, 1969. "It really happened." The Economist 25 February 2006: 48. Mill, J S. On Liberty.106 New York: Macmillan Publishing Company, 1956. "Oriana's Thread." The Economist 23 July 2005: 46. Perry, Sheila, Aspects of Contemporary France. 176-177 London: Routledge, 1997. "Reaping the whirlwind." The Economist 18 February 2006: 48. Scalabrino, M, International Code on Religious Freedom. 26-29 Leuven: Peeters Publishers, 2003. Smith, Sharon. "The racist hypocrisy behind the hijab ban" Socialist Worker Online 487 (2004): 7. 18 Apr. 2006 . The European Convention on Human Rights. 27 Sep. 1995. 18 Apr. 2006 . "The new Dutch model." The Economist 2 April 2005: 22-24. Vickers, Lucy. Freedom of Speech and Employment. New York: Oxford University Press, 2002. Read More