Free speech: Rights and Limitations

Abstract

This chapter begins with a discussion of Voltaire’s approach to free speech and moves on to the classical case for free speech as argued by John Milton and J. S. Mill—that truth would emerge from the contestation of ideas. Despite its looking quaint in the age of fake news and the social media free-for-all, some of Mill’s ideas remain relevant: the argument from truth for the necessity of free speech is just as valid in contemporary times as it was in the middle of the nineteenth century. Even Jurgen Habermas’s elitist ideas about reasoned debate are not entirely dead because what is not touched by the excesses of contemporary public discourse is his concept of a public sphere as a place of mediation between individuals and the state. However, freedom of speech and of the press is under assault in some Western democracies because of the national security panic induced by the terrorist attacks of 9/11. In many countries, civil liberties, including freedom of the press, have been curtailed as harsh laws enacted in the name of national security have criminalised journalism in some jurisdictions. However extreme this has been in some places, it remains true that in no mature democracy is free speech regarded as an absolute right. It is subject to limits based fundamentally on Mill’s harm principle, these limits being given expression in laws concerning defamation, contempt of court and pornography, among others. There is also pressure in some societies to revivify blasphemy as a constraint on speech. Among the most extreme was the reaction to the Danish cartoons, and the emergence of what has become known as the assassin’s veto. The chapter ends with a return to Voltaire and the insight that defending the right to free speech is not the same as defending the uses of that right in a particular case.