Freedom of speech and its limits

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Ilustracija: Phralipen.hr

Freedom of speech is the principle that encourages the freedom of any individual or group to express their opinions without censorship or legal punishment and is also categorized as a human right in the Universal Declaration of Human Rights. In the daily discourse there are debates about where the limits of freedom of speech should be, whether it includes hate speech, defamation, and the like. In this column I will present the issue of freedom of speech and its limits within its historical context.

When we consider the freedom of speech as a philosophical concept we will soon notice that it has several interesting features. Namely, speech as such is necessarily social and there is no need to advocate for its freedom if we are alone on an island where no one can hear us, and since the freedom of speech can only be spoken in the context of society, we must approach it carefully so as not to endanger other human rights such as the right to privacy, security, democratic equality and the prevention of physical pain. Bearing in mind that freedom of speech can violate other human rights, it can never be absolutely free, nor an absolute right. That is why every state restricts this right by prohibiting hate speech and defamation. Freedom of speech, too, in order to be a speech at all, must at least be slightly limited. If we all speak at once, it will no longer be a speech but noise. So without some rules and procedures we simply cannot participate in the conversation, and speech as such is restricted by protocols of mutual respect and decency.

The most relevant spokesman for freedom of speech, philosopher John Stuart Mill, in his book On Libertynotes that freedom of speech must be limited by the harm principle, but it is still being debated about what is at stake. Mill writes that speech should not directly violate the rights of a particular person, but each should interpret what a direct violation is, and accordingly we define our attitude to the principle. To help us, Mill uses the famous reference to corn dealers. He suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed in print. It is not acceptable to make such statements to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. Philosopher Joel Feinberg, in his book Offense to Others, argues that the harm principledoes not go far enough and that freedom of speech must be limited by the offense principle, because insult promotes discriminatory ideas that end very quickly with direct attacks and individual harm. Bearing this in mind, many European countries are proud of the prohibition of Holocaust denial, including Austria, Belgium, Canada, the Czech Republic, France, Germany and many others.

There are arguments in philosophy about why it is even necessary to defend the freedom of speech. John Stuart Mill, as a great fan of logical thinking, claims that freedom of speech is needed because the truth necessarily expels the untruth, and if we allow public discussions with any thesis, people will find it easier to get the right information and ideas. He further points out that the truth had changed over time and that something that was once believed to be the truth, by means of new discoveries becomes untrue and vice versa, therefore we must not forbid ideas that seem to be wrong. Then he notes that there are two different ways of eliminating the freedom of speech. The first is the danger of a state’s punishment, i.e. a fine or a prison sentence, and the other is a danger of marginalization. Mill contends that people often avoid public speaking from fear of mockery or attack because of offending someone with their speech and considers that such marginalization is bad because it stops the thesis to come to its own logical conclusion. He thinks that socially unacceptable theses should be allowed to develop, because they would then be destroyed, exposing the inaccuracy of their own conclusions. It is important to note that such an attitude implies that people develop their own thinking by reasoning at the same time evaluating principles like equality, but ignores the sound observation that people often develop attitudes of their own, which sometimes implies compromising other people and groups.

In the 21st century, after we had been faced with all the horrors triggered by the German Nazi hate speech, Mill’s arguments seem counterintuitive, but it is necessary to understand the historical context in which the right to freedom of speech arose. In 1501, Pope Alexander VI issued a bull against unlicensed printing, and in 1559 Index Expurgatorius was published which contained the list of prohibited books, according to which governments all over Europe acted. The list included, among other things, books by Rene Descartes, David Hume, John Locke, Jean-Jacques Rousseau and Voltaire.

The first attempt to elaborate arguments for freedom of speech occurred in 1644 when John Milton in his unapproved book of Areopagitica,after he had suffered censorship himself in his efforts to publish several tracts defending divorce, asked the church and state authority to give him “the liberty to know, to utter, and to argue freely”. Bearing in mind this historical context, we note that the right to freedom of speech, just like all other human rights, has been fought for so that the defenceless and the helpless have the right to criticize the powerful, to organize themselves around a certain idea and to change the laws, by redistributing power. Throughout the past, it has always been allowed to talk ill of the weaker: the noblemen talked ill of merchants, merchants of slaves, men of women, all of strangers, without any repercussions. On the other hand, in the past it was forbidden to speak against the powerful, people could lose their lives or freedom. Having this distinction in mind, we note that the right to criticize the government, detect corruption or violations of law by powerful companies, historically, is a step ahead, and the hate speech about disadvantaged minorities is a step backwards.

In this context, when we hear that freedom of speech is invoked by those who want to be free to speak negatively about the economically and politically oppressed, we realize that we are in a situation where the powerful ones want to be even more powerful, and when we hear the freedom of speech is invoked by those who want to criticize powerful institutions, companies and government, we will see that we are in a situation where the helpless people want equality before the law. Bearing this in mind, we can perceive Croatia, which, according to the non-governmental organization Freedom House, has major problems in dealing with the right to freedom of speech because of the harassment, dismissal and punishment of journalists dealing with corruption, specifically mentioning journalist Slavica Lukić, who had to pay a fine because she wrote a negative report on Medikol. It also mentions the statutory ban on insulting national flag and anthem, which can result in up to three years prison, as well as the situation with the Croatian Radiotelevision, where people who speak against it are silenced, punished, and fired. Such situations are, therefore, an example when the helpless struggle for powerful people to take responsibility for their actions and to be punished. On the other hand, the anti-Rroma protest in Međimurje is an example when the economically and politically more powerful population demands more rights, at the expense of the economically and politically less powerful Rroma population.

Freedom of speech is a problematic right that, because of its power to disrupt other rights, is always re-examined. Discussions on the limits of freedom of speech have been present from Milton until today and it is impossible to offer an exact answer that would match the sentiment of all people. Therefore, it is up to each of us, to understand the philosophical problem, historical context and the real repercussions of this right and to represent our opinion of limits in the public discourse as better as possible, in a way that by offering maximum freedom other people’s rights have not been violated.

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