Fundamental rights are generally presumed a set of civil Liberties in the context of a system- Explain & Illustrate.

 

Abstract

This essay focuses on the Right to Freedom of Speech and Expression. First of all it talks about the fundamental rights of a citizen which are pretty much similar to every country. Among those rights Freedom of speech is one of the most important human rights is to imply anybody to say what they wish, to express one’s own expression through orally or in a written form. After analyzing some of the constitution regarding this topic it is clear that every democratic country’s constitution gives the right to freedom of speech, expression and opinions. But the freedom is restricted to some extent for the welfare of the society which ensures freedom but prohibits from incitement, criticizing, sedition, obscenity, insulting speech ,  state’s security, foreign affairs and relations with foreign states, public order, decency (no obscenity), and no violation of any laws of the state.

Keywords: The Right to Freedom of Speech and Expression, Constitution, human ri

Introduction:

Fundamental rights are generally presumed a set of civil liberties in the context of a legal system. Fundamental rights are reinforced in different ways with different emphasis within different legal systems [1].

Some universally recognized rights as fundamental contained in the U.N. Covenant on Civil and Political Rights or the U.N. Covenant on Economic, Social and Cultural Rights are as follows:

? Right to equal protection under the law [1][2]

? Right to freedom of thought [3]

? Right to freedom of speech and press (cf. freedom of expression)

? Right to freedom of association [4]

? Right to freedom of movement within the country [5]

? Right to vote in general election

? Right to direct a child’s upbringing [6]

? Right to privacy [7]

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  1. Fundamental rights (2011) In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/Fundamental_rights#cite_note-0
    1. U.S. Constitution. . amend. XIV.
    2. Bolling v. Sharpe, 347 U.S. 497 (1954) (reading 5th amendment as containing an implicit equal protection restriction on the laws of the federal government)
    3.  U.S. Constitution. amend. I.
    4.  U.S. Constitution. amend. I.
    5. United States v. Guest, 383 U.S. Constitution.  745 (1966) (Establishing constitutional right to travel between states)
    6. Wisconsin v. Yoder, 406  U.S. Constitution.  205
    7. Griswold v. Connecticut, 381  U.S. Constitution.  479 (1965)

? Right to marry [8]

? Right to property

? Right to freedom of contract by parties with proportional bargaining power

Our concern is to deal with Right to freedom of speech and expression as per our topic demands. Freedom of speech and expression is the most fundamental right in a democratic country to express oneself and one’s opinion that all citizens must comply.  This basic right is common to every democratic country.  It generates sound and reverberate sound when someone speaks through it.  This is similar to how democracy functions:  When there is voice, everyone benefits in a democracy.

Freedom of Expression and Speech:

Basically, Freedom of speech is referred to talk freely with freedom which should not be subjected to any kind of restrictions whereas, the term freedom of expression is sometimes used synonymously but it includes any act of seeking, receiving and communicating ideas despite of the medium used.  According to Douglas Ray Democracy means freedom for citizens to make their own choices, but not at the expense of others. Freedom of speech is one of the most important human rights which suggest anybody to say what they wish, to express one’s own expression through orally or in a written form. [9] Speech just not includes only verbal speech and need not include any words. The expression can be expressed as symbol. Take an example of the Vietnam war where wearing of armbands is a symbol of peace. [10]

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8.Loving v. Virginia, 388  U.S. Constitution. 1 (1967)

9. Ray D. “Freedom of Speech” retrieved from http://www.unb.ca/democracy/English/Ideas/Freedoms/Speech/Speech.html [Accessed October 10, 2011]

10. Tinker v. Des Moines School District, 393 U.S. 503 [1969].

The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Article 19 goes on to say that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “for respect of the rights or reputation of others” or “for the protection of national security or of public order (order public), or of public health or morals”.[11][12]

Freedom of expressing the speech is a right for the people but the person shouldn’t exercise this right to abuse others and to abuse deprived people which saying in the article. People can express their expression through any medium either orally or in a written form.

To What Extent the Right to Freedom of Speech and Expression can be restricted:

In practice, the right to freedom of speech is commonly subject to some restrictions, such as on libel, slander (insult), obscenity, provocation to commit a crime, etc.

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11. Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. Retrieved from  http://www2.ohchr.org/english/law/ccpr.htm [Accessed October 12, 2011]

12. Using Courts to Enforce the Free Speech Provisions of the International Covenant on Civil and Political Rights – Australia & Oceania – Australia & New Zealand from All Business. Retrieved from http://www.allbusiness.com/corporate-governance/4082846-1.html [Accessed October 13, 2011]

It should be restricted if it causes or could cause actual physical harm. It should be allowed unless someone slanders libels or defamations. No one can give free speech as an excuse to spread unkind rumors and lies about someone. It should also be restricted when someone is exercising rights on someone else’s property when they didn’t give them the authority to do so. As an example, no one cannot hand out leaflets in a shopping center or shopping mall, because it’s a private and not a public location. People should be allowed to have their opinions and speech to criticize the government or public officials unless it’s bogus and done with hateful objective.

Freedom of speech, properly enacted and conducted with care for the rights of all concerned, The written words can also be hostile, if is hard to contains the hatred sourced at the spoken or written word, e-mail or the world wide web. Compared to oral speech, the written word usually has a longer lifetime and a broader impact. Most people agree in the note that freedom of speech should not be restricted by the authority except if one expresses hatred, aggression or lie targeted for any intensions. In such cases the court will decide the following situations as an example of the restrained character of the freedom of expression.

Restrictions to Freedom of Expression:

There are some broad grounds to which Freedom of Expression and Speech is restricted.

(1)   Defamation [13]: When a false statement cause harms the reputation of another person this is called defamation but the expression of an opinion is not considered defamation. As a result, in the case of intended false statement, the freedom of expression is restricted (whether a spoken slander or written libel). Example: when someone is rumoring about Mr. X’s 2rd marriage to attack his reputation though this is a false claim.

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13. “A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” American Law Institute Restatement of the Law of Torts, Second, Sec. 550

(2)   Causing panic [14]: This is another ground on which freedom of speech is not protected by the 1st amendment of US constitution. Example: When an opposition party’s meeting is going on Paltan Maidan, at that moment someone falsely shout “Bomb Bomb”, then the mass crowd will try to find a safe place and fall down. As a result collapse and accident might happen. So on that note, we can’t say that the freedom of speech should not be protected.

(3)   Fighting words [15]: If someone(X) deliver fighting words to a person(Y) to persuade him to fight with X, this is an example of fighting words. So what if the freedom of speech is not protected? The answer to that question is it is restricted to that note too not to crate harm to others.

(4)   Incitement to crime: similar to fighting words, it is a crime to incite someone else to commit a crime for some intension. Example: A novel criminal defense has arisen, claiming that such music somehow forced the defendant to commit the crime. In Austin, Texas, Ronald Ray Howard, charged with the capital murder of a state trooper, claimed in his defense that “. . . he learned to hate police officers from years of listening to rap music with violent anti-police themes. this can’t be an acceptable defense. And the jury convicted him, reaching a verdict in 35 minutes [16].

(5)   Sedition: sedition referred to trouble making. If a person create problem to another person, group of people, and the society at large or to government, this is termed as sedition and this is not allowed.

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14. This classic exception is credited to Justice Oliver Wendell Holmes: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (I) Schenck v. United States, 249 U.S. 47 (1919)

15. U.S. Constitution. amend. I. (315 U.S. 568, 572 [1942])

16. The New York Times, June 10, 1993, p. A10.

(6)   Obscenity: An obscenity is any statement which strongly offends the widespread ethics of the time which also refers to indecency, or offensiveness in behavior, expression, or appearance. Three-pronged test has been established by the U.S. Supreme Court for obscenity prohibitions which would not violate the First Amendment regarding freedom of speech [17]:

(a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

 (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

It is tough to select a common standard for obscenity which could be adapted to different communities. It varies country to country it may even vary within the country; obscenity in rural village like “Mushiganj’s Atigaon” might not count as obscenity in Dhaka City.

(7)   Offense: Offence refers to a violation of any kind of penal law which is related to crime. Example: someone says something which violates the law of that Democratic country, this should not be termed as a freedom to speech and expression.

(8)   Establishment of Religion: when some speech constitutes the establishment of religion then the freedom to speech is restricted on that note because it can create c9haos in the society and which is also an offence.

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17. Miller v. California (413 U.S. 14 [1973])

Constitutional Rights regarding the Right to Freedom of Expression and Speech:

In terms of Bangladesh Constitution:

The Article 39 of our constitution states that [18]:

Article 39. Freedom of thought and conscience, and of speech:

(1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.

(2) 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.

In the first part of our constitution’s article 39 says about the right regarding the freedom of speech, opinion and thoughts. This is guaranteed by the subsection 1..

The 2nd subsection talks about the reasonable restrictions to that guarantee. This has been imposed to ensure state’s security, foreign affairs and relations with foreign states, public order, decency (no obscenity), no defamation, enticement, and no violation of any laws of the state.

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18. Bangladesh Constitution. Article 39. Retrieved from http://www.banglaembassy.com.bh/Constitution.html  [Accessed October 07, 2011]

In terms of U.S. Constitution:

The First Amendment to the United States Constitution ensures the protection of freedom of speech by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words,[19] as well as harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, commercial speech such as advertising, and time, place and manner restrictions.

In terms of British Constitution:

Under the common law, United Kingdom (British) citizens have a negative right to freedom of expression.[20] In 1998, the United Kingdom incorporated with the European Convention, and they got the guarantee of freedom of expression which contained in Article 10, into its domestic law under the Human Rights Act. Still some restrictions are also present there, like incitement, incitement to racial hatred, terrorism, threatening, abusive, or insulting speech, sedition obscenity, scandalizing the court by criticizing or murmuring judges, time, manner, and place restrictions, harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, and limitations on commercial speech such as advertising.

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19. Neisser, Eric (1991). Recapturing the Spirit: Essays on the Bill of Rights at 200. Rowman & Littlefield. p. 68. ISBN 9780945612230. http://books.google.com/books?id=dj6Ddz0cFfcC&pg=PA68.

20. Klug, Francesca (1996). Starmer, Keir; Weir, Stuart. eds. The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom. The Democratic Audit of the United Kingdom. p. 165. http://books.google.com/books?id=G0UMoZMrQh0C&pg=PA165.

Conclusion:

 Along with other basic rights, Freedom of speech and expression is the most fundamental right in a democratic country to express oneself and one’s opinion that all citizens must comply. Every Democratic country has the right to freedom of expression and speech, but each country has some restriction on that freedom which has been guaranteed by every country’s constitution. The restrictions are more or less similar, which ensures freedom to expression and speech but prohibits from incitement, criticizing, sedition, obscenity, insulting speech and which also ensures state’s security, foreign affairs and relations with foreign states, public order, decency (no obscenity), and no violation of any laws of the state.

Bibliography:

  1. “A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” American Law Institute Restatement of the Law of Torts, Second, Sec. 550
  1. Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. Retrieved from  http://www2.ohchr.org/english/law/ccpr.htm [Accessed October 12, 2011]
  1. Bangladesh Constitution. Article 39. Retrieved from http://www.banglaembassy.com.bh/Constitution.html  [Accessed October 07, 2011]
  1. Bolling v. Sharpe, 347 U.S. 497 (1954) (reading 5th amendment as containing an implicit equal protection restriction on the laws of the federal government)
  1. Fundamental rights (2011) In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/Fundamental_rights#cite_note-0
  1. Griswold v. Connecticut, 381  U.S. Constitution.  479 (1965)
  1. Haiman, Franklyn S. 1993. Speech Acts and the First Amendment. Carbondale, Ill.: Southern Illinois Univ. Press.
  1. Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press.
  1. Klug, Francesca (1996). Starmer, Keir; Weir, Stuart. eds. The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom. The Democratic Audit of the United Kingdom. p. 165. http://books.google.com/books?id=G0UMoZMrQh0C&pg=PA165.
  2. Louis B. Schwartz, “Morals Offenses and the Model Penal Code,” Columbia Law Review LIII (1963), 669
  1. Loving v. Virginia, 388  U.S. Constitution. 1 (1967)
  1. Miller v. California (413 U.S. 14 [1973])
  1. Neisser, Eric (1991). Recapturing the Spirit: Essays on the Bill of Rights at 200. Rowman & Littlefield. p. 68. ISBN 9780945612230.
  1.  Ray D. “Freedom of Speech” retrieved from http://www.unb.ca/democracy/English/Ideas/Freedoms/Speech/Speech.html [Accessed October 10, 2011]
  2. 15.                  The New York Times, June 10, 1993, p. A10.
  1. This classic exception is credited to Justice Oliver Wendell Holmes: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (I) Schenck v. United States, 249 U.S. 47 (1919)
  1. Tinker v. Des Moines School District, 393 U.S. 503 [1969].
  1. U.S. Constitution. . Amend. XIV.
  1. U.S. Constitution. Amend. I. (315 U.S. 568, 572 [1942])
  1. United States v. Guest, 383 U.S. Constitution.  745 (1966) (Establishing constitutional right to travel between states)
  1. Using Courts to Enforce the Free Speech Provisions of the International Covenant on Civil and Political Rights – Australia & Oceania – Australia & New Zealand from All Business. Retrieved from http://www.allbusiness.com/corporate-governance/4082846-1.html [Accessed October 13, 2011]
  1. 22.                  Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac.
  1. Wisconsin v. Yoder, 406  U.S. Constitution.  205
  1.  U.S. Constitution. Amend. I.