Free to challenge


We must be free to challenge all limits to freedom of expression and information justified on such grounds as national security, public order, morality and the protection of intellectual property.

Timothy Garton Ash
Timothy Garton Ash, director of Free Speech Debate, gives a personal introduction

If our first draft principle is the basic principle, our final one is a kind of meta-principle. It says we must be free to challenge all limits on free expression. That is a procedural claim. On being more fully informed about the reasons for a restriction, we may end up finding it right. Or we may defy it and take the consequences. So far as possible, there must be a transparent process of arriving at the limits to freedom.

We must be free to challenge all limits to free expression. But the three grounds we mention as examples – national security, public order and morality – are not chosen at random. They are among those that governments, both democratic and undemocratic, invoke most frequently to justify restrictions on freedom of expression. At the same time, they are three grounds that Article 19 of the International Covenant on Civil and Political Rights explicitly mentions (along with “public health”, which has rarely been invoked, and “rights or reputations of others”, see our Principles 8 and 9) as justifying restrictions – so long as these “are provided by law and are necessary”. But who decides what is “necessary”?

Even governments that have signed and ratified the Covenant (see our map) often use one of these as an elastic, catch-all ground for restricting freedom of expression. There are innumerable and notorious examples of this under totalitarian, authoritarian and what political scientists call “hybrid” regimes (those with a mix of democratic and authoritarian elements). In fact, the catch-all use of such grounds to curb informed criticism of government policies, and the lack of legal or other effective challenges to those restrictions, is a hallmark of such regimes. In Egypt, after the toppling of Hosni Mubarak, bloggers were imprisoned just for criticising the military.

There are also many examples in democratic countries. The largest democracy in the world, India, curbs dissent using the capacious anti-sedition article 124A of its penal code, inherited from the British colonial era. (Back then, Gandhi called it “the prince of the political sections of the IPC suppressing the liberties of a citizen.”) It has been used against writers and activists such as Arundhati Roy, who talks about it here. In 2011, an official secrecy bill was proposed in South Africa, which suggested draconian penalties of up to 25 years for disclosing classified information (read our case study here).

In several leading western democracies, the response to the terrorist attacks of 11 September 2001, and the subsequent bombings of Madrid and London, saw curbs to freedom of expression in the name of national security and public safety. In the US, these were informed by the idea – or metaphor – of the “war on terror”. “War” or “national emergency” has, in many times and places, been held to justify restrictions that would not be acceptable in peacetime. But who decides what is a war, what an emergency? Swaziland has, at this writing, had a “state of emergency” for more than 38 years. Egypt had a “state of emergency” from 1981 until 2011. It was partially, but by no means completely lifted by the country’s military rulers in early 2012.

In his book Perilous Times: Free Speech in Wartime, the American scholar Geoffrey Stone argues that first amendment protections of anti-war speech held even under the administration of George W Bush. But the so-called US Patriot Act and other measures were used to enable both long-term incarceration of terrorist suspects without trial and the comprehensive gathering of electronic data.

In Britain, Samina Malik, a 23-year-old shop assistant at Heathrow airport – who wrote some bloodthirsty doggerel, described herself as “lyrical terrorist” and downloaded inflammatory jihadist material – was convicted under anti-terrorism legislation. (The conviction was overturned on appeal.) The 2006 Terrorism Act even suggested that the glorification of terrorism should be criminalised. Critics noted that, had he still been alive, the poet W B Yeats could have been prosecuted under this law for his verses glorifying the leaders of Ireland’s 1916 Easter Rising against British rule – terrorists in the eyes of the then British government. (“MacDonagh and MacBride / And Connolly and Pearse / Now and in time to be, / Wherever green is worn, / Are changed, changed utterly: / A terrible beauty is born.”)

Freedom of expression has often been limited in the name of “public order”. In Britain, as we document elsewhere on this site, provisions of the Public Order Act have been used to curb forms of expression that should arguably be allowed. The 1986 version of this act criminalises threatening, abusive or insulting words or behaviour, or disorderly behaviour “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. Just “likely to be”; the intention to cause such distress does not need to proved. Even if a prosecution does not result, police invoke these broadly worded powers to make arrests, or threaten to do so. And that’s just in Britain. Elsewhere, “public order” can mean whatever the current powerholders want it to mean.

Morality, sometimes called public morality or morals, is even more difficult to pin down. Norms on things like obscenity, dress or sexual conduct vary enormously, with both time and place. They are not even the same across one country at the same time. In relation to pornography, the US supreme court has consistently emphasised that the average person must find the material offensive under “contemporary community standards”. But it further insists that this depends on the community in question. What may be tame in the Castro district of San Francisco is outrageous in a religious, conservative small town in Iowa. The court therefore suggests that individual states should make these calls. Yet the effect of the internet is to knock holes through all those traditional frontiers between communities, generations and states. So who decides? On what basis?

The otherwise excellent General Comment of the UN Human Rights Committee struggles to make anything more than very general comments on these elusive areas. It is most specific on national security, warning against the use of laws to “suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders or others, for having disseminated such information”. On public order, it merely says that “it may be permissible in certain circumstances to regulate speech-making in a particular public place”. On morality, it almost throws up its hands. It refers to another General Comment (number 22) which observed that “the concept of morals derives from many social, philosophical and religious traditions: consequently, limitations … for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition”. Meaning what in practice?

One approach is to work towards giving more specificity and rigour to such very general principles. This is what a group of experts convened by Article 19 did in their 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information. An ongoing exercise, coordinated by the Justice Initiative of the Open Society Foundations, attempts further to update and refine these principles, emphasising particularly the public right to information – which Sandra Coliver argues on this site should be included in our ten draft principles. The latest iteration can be read here. It seems unlikely that one could achieve even this level of clarity for curbs justified by public order – let alone, for those in the name of morality.

Precisely because of the difficulty of establishing firm, universal and trans-cultural standards in these and some other areas, the meta-principle of the freedom to challenge becomes crucial. If someone knowingly breaks the law in order to widen the boundaries of free speech in a given country, he or she may reasonably expect to be subject to a proportionate fine or civil penalty. But no one should ever – anywhere, under any circumstances – be prosecuted or persecuted for challenging the principle of a law or regulation restricting freedom of expression, or for questioning its application in a particular case.


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