‘The freedom of expression must never be restricted’. As with most short-hand slogans, this one short-changes the truth.
Even US lawmakers, constrained by a constitution that explicitly declares under its First Amendment that ‘Congress shall make no law … abridging the freedom of speech, or of the press’, have no doubt that legal action is necessary against irresponsible communication when certain conditions are met. There are at least five distinct categories where there is long established consensus that government intervention is required.
The first category concerns the lawless effect that is likely to be caused by the communication in question. Since Brandenburg v. Ohio (1969), the US has relied on ‘inciting or producing imminent lawless action’ as the criterion for intervention. So if someone urges others to beat up someone walking by, or provokes others to react violently, that may warrant intervention. However, the impact has to be ‘imminent’, which means that if an extremist is setting out why people should look for opportunities in the future to inflict harm on certain groups, that may be permissible. Furthermore, since racist abuse is considered protected under the First Amendment in the US, anyone spreading such abuse is safe from the law so long as the victim does not react immediately with violence (or some other ‘lawless action’). Ironically, this means that those who are hurt by racist abuse but bear it stoically will thereby render the act beyond legal action, and the only way to bring it into the scope of state intervention is if one is ready to engage in some lawless action in retaliation straightaway. By contrast, in England and Wales, any hate speech targeting a person's colour, race, disability, ethnic or national origin, religion, or sexual orientation is forbidden by law.
The second category covers communication that is unacceptable in itself – because it is deemed by contemporary standards to be obscene or offensive. At first glance, it may strike many that this is one category of communication that should have no restriction whatsoever. As Justice John Marshall Harlan once wrote (Cohen v. California, 1971), ‘One man’s vulgarity is another’s lyric’. Social attitudes change over time. And what one religion declares as blasphemous or profane, may be perfectly acceptable to another, let alone to those who subscribe to no religion at all. The US has from its inception kept religious disagreement out of the government’s jurisdiction. Belatedly, the UK abolished in 2008 the criminal offence of blasphemy in England and Wales. However, it would be fallacious to leap from the lack of common judgement in some areas, and the changes of standards in others, to the conclusion that there are no general standards at all for acceptable communication. To take just one example, there is total consensus in enforcing against the circulation of paedophilic ideas and images.
The third category deals with attempts to communicate what belongs to others. Patented ideas, written materials with copyright protection, confidential commercial documents, and a wide range of intellectual property cannot be passed without restriction in the name of free expression or communication. But even where commercial infringement may not be an issue, people are expected to have their privacy respected, so that their private conversations, their personal documents, their own records, etc. are not something others can pass on without satisfying particular legal conditions. In the UK, for example, apart from defined groups such as accountants, solicitors, or journalists who are discharging relevant professional duties, anyone seeking to obtain and pass on information about others without their permission must first apply for a Security Industry Authority licence, or else their activities would be illegal.
The fourth category draws the line against the communication of false information. With the spread of groundless scepticism and a resurgence of fundamentalist rejection of objective evidence, it may be easy to forget that the distinction between truth and falsehood remains key to the rule of law. Some allowances ought of course to be made for the unintentional sharing of false information. If despite the best of one’s intention, the information one puts forward turns out to be false or misleading, the infringement may be excusable. For example, the US Supreme Court ruled in New York Times Co v. Sullivan (1964), that action should not be taken against the press on reporting false information unless those responsible knew it was false, or held the issue of truth with ‘reckless disregard’.
The final category targets any communication that is damaging to national security. Two factors would have to be weighed in practice. One is whether there is a genuinely serious threat that needs to be avoided, or might disclosure cause nothing other than embarrassment to someone in government. The other is that, granted there is a risk that aspects of the country’s security might to some extent be compromised, whether suppression of the information could give rise to a high risk of some other core aspect of the country’s wellbeing being badly damaged. For example, revealing the identity of security personnel involved in covert operations may put them and their mission in danger, but if they are responsible for torturing and killing people who are innocent bystanders, keeping it a secret may enable those activities to continue and put the safety of many more people in jeopardy.
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Note: The above piece is based on materials from my book, Time to Save Democracy. Find out more at: https://policy.bristoluniversitypress.co.uk/time-to-save-democracy
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