Expression and Speech are the main tools of communication for the human race – DISCUSS

Introduction:

Expression and Speech are the main tools of communication for the human race. These are the biggest god gift to mankind. “Expression” can cover holding views or opinions, speaking aloud, publishing articles or books or leaflets, television or radio broadcasting, producing works of art, communication through the internet, some forms of commercial information and many other activities.

The right to Freedom of expression and speech means people can express their ideas and opinions verbally without fear of interference, limitation or restriction and by other forms of expression, like- books, posters and even forms of artistic or imaginative expression. In addition, it protects the right to search for, receive and speak about information and ideas as well as covering the means by which information and ideas are expressed. As such it includes modern modes of communication, like the Internet. Weighty documents such as “The Universal Declaration of Human Rights”, “The International Covenant on Civil and Political Rights” as well as “Constitution of the People’s Republic of Bangladesh” have protected these forms of freedom as a basic human right.

We see the right to freedom of speech and expression in the “Constitution of the People’s Republic of Bangladesh” in article 39. In clause 2 of article 39 it is written that-

“Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-

a)      The right of every citizen of freedom of speech and expression; and

b)      Freedom of the press are, guaranteed.”[1]

This section gives us the idea about to what extent freedom of speech and expression is allowed. This section though does not show the area of the right to freedom of expression and speech precisely. That’s why there is neither a specific meaning of freedom of expression and speech nor a precise limit.

1. 1.      Extent in which the Right to Freedom of Expression and Speech can be Restricted:

There is always a limit of everything even if it comes to the term freedom and it has to be specified. The meaning of freedom of expression and speech allows us to talk about anything we think is right. But we should always keep something in our mind that we cannot harm our society, people of the society, state, or even mankind.

1. 1.      If we have freedom of expression and speech that does not mean we should take the advantage of this freedom in a wrong way to accomplish their own interest. People may take advantage of the freedom of expression and speech by spreading rumors, unfair criticisms, comments and downright falsehoods. These type of freedom should be restricted by creating moral improvement and by enforcement of the law
2. 2.      No one should criticize or pass comments those can circulate by the word of mouth. Because it has habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. That can be a reason why criticisms against the government should be publicly stated. If anyone does not do so then government cannot answer because government is not in a position to answer these criticisms if they have any answer. Because these can also be rumors or unfair criticisms and which can create anarchy or riot in the country.
3. 3.      Freedom of expression and speech is the right of person. But it does not grant people to talk to the minors with inappropriate language e.g. adult staffs, pornography etc. minors should be protected from material likely to harm or disturb them.
4. 4.      Freedom of expression does not give you the right to insult or abuse other people in public or private. In a society it is mandatory to behave with the norm and respect other peoples Offensive language insulting to particular racial or ethnic groups would be an example of where a lawful restriction on expression might be imposed.[2]
5. 5.      We should not talk anything wrong about other religions. Because, “All ethnic minorities must be prepared to integrate … and obligation for self-support”.[3]

There are many other areas like- obscenity, classified information, creating the atmosphere of violence, political secret, treason, destroying of morality and others in which freedom of expression and speech must be restricted for the betterment of the society.

1. 2.      Restricting the Right to Freedom of Expression and Speech:

Other than giving the freedom of speech an ideal position as it weighs the merits of cases that come before it, the Supreme Court also applies few specific and strict standards which are given in article 102 that must be met before a limitation on speech or expression can be believed constitutional. Some of the ways of restrictions are- process

Laws must not exercise what the Court calls “prior restraint”. It is important to law must be enforced in the by the law and in the court. Instead of limiting speech that might be defamatory or otherwise illegal before it happens, the Court has ruled that the appropriate action is to undertake civil or criminal proceedings after the fact.

Laws limiting speech must be content neutral. If the government enacts a limit on a particular kind of speech or form of expression, such as posting flyers on telephone poles, it must ban all flyers, and not just flyers with a particular subject matter. If only commercial flyers or religious flyers were banned, the law would not be content neutral. The Court has, however allowed some content-based limitations where public interests seem to overwhelm the individual’s rights of expression. Kinds of speech that have been constitutionally limited on a content basis include obscenity (see “Defining Obscenity” on the right), libel and slander, “fighting words” (words clearly aimed at starting a fight or provoking violence), and “subversive speech” or speech promoting the violent overthrow of the government.[4]

 Laws limiting speech or expression cannot be vague to the extent that they cause a “chilling effect” on speech. If ambiguous or unclear restrictions are placed on expression, individuals may not know what is acceptable under the law and what is not. To avoid the penalty of breaking the law, some people may choose to limit the things they say and express more severely than the law intended. When this occurs, the law has produced a “chilling effect” on speech, making individuals less likely to speak openly and freely. Such laws, the Court has ruled, are unconstitutional.[5]

A law limiting speech or expression can only be considered constitutional if it is the least drastic means available for accomplishing its stated objectives. For example, there is a clear public interest in keeping streets safe and, to the degree possible, free from congestion. Toward this end, a city might decide to ban all parades or marches on its streets. Such a ban, however, would not be the least restrictive means available. Instead, limiting the time and duration of parades and marches and requiring prior public notice of them would achieve the stated goals of the more restrictive law without unduly infringing on the individual freedom of expression.

1. 3.      Aspects or Grounds of Restriction:

To censor is to act so as to change or suppress speech or writing that is condemned as subversive of the common good.[6] But it has been abused a lot by ruling regime to hide their misconduct. One such example is execution of Socrates in 399 B.C. on charges that he corrupted the youth and that he did not acknowledge the god that the city did but other new divinities of his own.[7] In China in 231 B.C. blatant oppressiveness, and an attempt to stamp out the influence of Confucius and other sages, could be seen in the wholesale destruction of books.[8] With the passage of time people became aware of their rights and new principles of liberty and democracy emerged. The result was more and more freedom to people to express their views and freedom of press. But still the state can impose certain restriction on these freedoms. In clause (2) of Article 39 includes the ground on which it is clearly written some restrictions can be imposed on the freedom of expression and speech, such as-

1. 1.      The Security of the State: Security of state is of vital importance and a government must have the power to impose restriction on the activity affecting it. Under clause 2 of article 39 reasonable restrictions can be imposed on freedom of expression and speech when it necessary for the security of the state. The term “the security of the State” refers only to serious and provoked forms of public order e.g. rebellion, waging war against the state, revolution and not ordinary breaches of public order and public safety, e.g. unlawful assembly, unrest, scuffle. Thus speeches or expressions on the part of an individual, which provoke to or encourage the commission of violent crimes, such as, murder and matters, which would weaken the security of the state.
2. 2.      Friendly Relationship with Foreign States: In the present global world, a country has to maintain good and friendly relationship with other countries. Something which has potential to affect such relationship should be checked by government. Keeping this thing in mind, this ground was from the establishment of our constitution in 1972. The object behind the provision is to prohibit unrestrained nasty or hateful propaganda against a foreign friendly state, which may put at risk the continuation of good relations between our state, and that particular state.

No similar provision is present in any other Constitution of the world. In Bangladesh, the Foreign Relations Act, (XII of 1932) provides punishment for defamation by Bengali citizens against foreign dignitaries.[9] Interest of friendly relations with foreign States, would not justify the restraint of fair criticism of foreign policy of the Government.

1. 3.      Public Order: Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order.[10] Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In article 38, 41, 43, 59 (2- b) of our constitution public order is briefly discussed.
2. 4.      Decency or Morality: Decency or morality is mentioned in the article 39 and it is mentioned that in the freedom of expression and speech we have to follow the decency or morality. Morality actually prohibits the sale or distribution or exhibition of obscene words, using appropriate words to minors, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place. The Human Rights Committee has stated that there is no universally applicable standard for what constitutes public morality. If anyone think properly before doing anything then it is easy to take moral decision.
3. 5.      Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Article 108 “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.”[11] There are various laws falling under the contempt of court rubric which restrict the flow of information in order to protect the administration of justice. Some restrictions exist to ensure a fair trial and to avoid a “trial by the media.” Other restrictions are more to do with protecting the court from being “scandalized”. There are increasing questions about whether freedom to criticize the judiciary should be limited in this way.

1. 6.      Defamation or Incitement: Defamation is a statement which injures a man’s belief or reputation. It consists in revealing a man’s hatred, ridicule, or contempt. A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still unmodified in India and subject to certain exceptions. It is mentioned in the article 39 that any kind of deflation is not in the freedom of expression and speech.
2. 4.      Conclusion:

The right to freedom of speech and expression is one of the most important fundamental rights. It can also be comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words ‘in the interest of public order’ include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. So, we need be moral and reasonable before use our right to freedom of expression and speech.

 References :

1. Behling, Richard W.  “Freedom of Expression Should Be Restricted.”  Civil Liberties: Opposing Viewpoints. Ed.  Charles P. Cozic.  San Diego:  Greenhaven Press, 1994. 71-78.
2. Brown, Charles.  “Hate Speech Should Be Outlawed.”  Civil Liberties: Opposing Viewpoints. Ed.  Charles P. Cozic.  San Diego:  Greenhaven Press, 1994.  85-89.
3. Constitution of the People’s Republic of Bangladesh.
4. Foreign Relations Act, (XII of 1932).
5. Human Rights Acts, 1998.
6. Macropaedia, vol 15, 15th edn, p. 620.
7. McLead, Kembrew. “Freedom of Expression”, Doubleday, 2005.
8. The new encyclopedia Brittanica,vol.3,Micropaedia,15thedn.,1991
   1. http://plato.stanford.edu/entries/freedom-speech/
   2. http://www.enotes.com/everyday-law-encyclopedia/free-speech-freedom-expression
   3. http://www.goforthelaw.com/articles/fromlawstu/article16.htm
   4. http://civilrights.uslegal.com/freedom-of-speech-and-expression/permissible-restrictions-on-freedom-of-expression/obscenity-and-pornography/
   5. http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_Humanrightsandthepublicsector_Humanrightsguidancesheets_
   6. Righttofreedomofopinionandexpression
   7. http://www.sf.dk/default.aspx?func=article.view&id=11145
   8. http://human-rights.unglobalcompact.org/resources/freedom_of_opinion_speech_and_expression/