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  • Can the right to free speech be justified? 09 June 2015 | View comments

  • Raji Gezahegn (LLM) 

    Despite the ubiquitous acceptance of the right to free expression, the arguments in support of it are not as conclusive as many would like to believe, argues Raji  Gezahegn.

    I believe that most readers would consider the title of this commentary a bad attempt at rhetoric. “Of course it can!” is the categorical reply from most people with whom I have discussed this issue. The universal acceptance of human rights and democracy has made the right to free speech a household mantra. The right is recognized under international instruments, most constitutions and/or bill of rights that accompany them and most scholars have come to accept its vital role in creating a pluralistic, open and democratic society. Intergovernmental and non-governmental human rights organizations use the protection afforded to the right as one of the major criteria to assess the performance of states in fulfilling their human rights obligations and highly criticize those who fall short of the minimum standard. Even authoritarian and repressive states masquerading as democracies try very hard to feign interest in protecting this right. The international community seems to have reached the consensus that the right to free expression is indispensable in a democratic society. 

    So, why muddy the settled waters and ask if this right could be justified? For two main reasons. First, despite the ubiquitous acceptance, the arguments that form the bedrock of arguments for free speech are not as conclusive as many would like to believe. Second, because the arguments for the right to free expression are not a settled matter; it would behoove those who believe in the importance of free speech and fight to defend it to be aware of the shortcomings of the major arguments for free speech, so that they can revamp or even alter them in order to provide sound theoretical basis for their struggle.    

    The Arguments for the Right to Free Speech

    For ease of discussion, the arguments can be grouped into two categories—positive theories and negative theories—on the basis of the nature of the justifications they provide for the right to free speech. Most of the arguments made in favor of a special protection for free speech emphasize the positive case for affording free speech and the said protection. The gist of the positive case is that affording special protection for free speech would promote values which are perceived as being indispensable, either for their own sake or as a means to attain some other higher societal value. The three most frequently cited candidates of values argued to be promoted by free speech are the societal search for truth, self-governance and individual autonomy.

    According to the Search for Truth or Market Place of Ideas argument, unimpeded free discourse and discussion is the best method for discovering truth. The argument is based on the assumption that truth, given time, will inevitably prevail over falsehood through the sheer hold that it can muster on the minds of men. The prowess of truth, inevitably overcoming false beliefs, dogmas and superstitions, is the trump card on which the entire search for truth argument rests on. But every day experience provides us with endless examples of people persisting in their false beliefs even in the face of overwhelming evidence to the contrary. This fact seriously undermines the force of the search for truth argument. 

    Furthermore, the argument is based on a series of questionable underlying assumptions, which only become explicit at closer examination. These three assumptions are namely: truth is objective and discoverable, individuals are basically rational, and discovery of truth is desirable because truth provides the most reliable basis for action. All three of these assumptions have been rendered very suspect in recent times. First, it is no longer the consensus that truth is objective. In fact, modern philosophy and social theories are built on the premises that truth can be subjective. Many have argued that there is no such thing as an objective truth especially in the social sciences in which the diversity in experience, interest, and needs highly inform one’s perception of social reality. If this is indeed the case, then it is no longer self evident that free speech will lead to the discovery of objective truths or that free speech is the best way of going about discovering social reality.

    The doubt that has been raised against the objectivity of truth casts a shadow of skepticism over the claim that individuals, through the exercise of their faculty of reason, can discover truth. If indeed truth could be subjective, then it means that free speech would only lead to subjective truth. Furthermore, it has been contended by many that reason is not the sole or primary means of acquiring knowledge and that knowledge might be constructed socially in the same vain as our differing views of social reality.

    The autonomy argument, on the other hand, states that free speech forms an integral part of each individual’s right to self-fulfillment and development. The free expression of one’s ideas and beliefs is a fundamental manifestation of the equal worth and respect that should be accorded to each individual. The moral autonomy of individual beings demands that ideas and opinions be freely articulated so that individuals could express their independence.

    Here, autonomy is treated as an independent and inherent value, and free speech is defended because it is necessary for autonomy regardless of the fact that inimical results for the social welfare might result from it. Free expression is defended not on instrumentalist grounds but because it is an independent and inherent good.

    The autonomy theory has been criticized for a number of reasons. First, the theory fails to provide a credible argument for why the right to free speech is indispensible to autonomy and self-fulfillment. It could be argued that autonomy requires more than just the government refraining from interfering with the free exercise of speech. Autonomy may be argued to require positive rights such as the right to adequate housing, education and other infrastructures. There seems to be no reason why free speech should be given priority over these rights for special protection.

    Another criticism of the autonomy theory is that its proponents fail to appreciate the fact that autonomy appears on both sides of the free speech argument. That is, autonomy should not only be considered when one seeks to establish an extensive platform for the protection of free speech, but also in those instances where free speech could be legitimately restricted or prohibited because it’s exercise will result in damages to the autonomy of individuals.  Autonomy, hence, features on both sides of the scale.

    The final positive theory for the protection of free speech is what is referred to as the democratic self-governance theory. The brunt of the democratic self government rationale for a right to free speech relies on the apparent and almost universally accepted importance that the free discussion of ideas and opinions has for creating an informed citizenry, which is essential for the proper functioning of democracies. The justification holds that the virtues of a politically literate, argumentative, robust and high minded citizenry with a thirst for political truth can best be inculcated by allowing for all opinions on public matters to be heard. 

    The sinew that ties free speech and democracy was, in my view, best expressed by Justice Brandeis in the US Supreme Court case Whitney v. California when he wrote,

    Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary…They believed that freedom to think as you will and to speak as you think are means indispensible to the discovery and spread of political truth; … that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. (Whitney v. California, 274 US 357, 375-8 (1927)).

    The democratic self governance argument has been criticized for being too anachronistic a model for understanding and explaining the complexities of modern day democracies and the multiple rationales that they afford to protect free speech. In as far as the argument heavily relies on the need to expose citizens to a wide array of ideas that will enable them to hold their elected government accountable, only political speech could have a valid claim to protection. Indeed, it is all together uncertain whether other possible categories of speech can be considered as being necessary for wise decision-making in a democratic setting. For instance, it would be extremely difficult to justify free speech protection for tabloid magazines, obscene literature or artistic expression by the logic of the democratic self-governance argument.

    In contrast, to the positive theories, the negative theories for a right to free speech do not advocate that there are positive values that would be promoted by protecting free expression. Rather, their argument is based on the pessimism which they so effusively hold against the ability of governments to regulate speech and the rectitude of the motives behind governmental regulation of expression. The proponents of the negative case for free speech argue that governments are prone to overregulation in the name of public interest because officials have an inherent conflict of interest when they regulate commentary on their conduct, rendering their judgments about expressions that should be allowed or limited biased in favor of their self-interest.

    In addition, modern representative democracies are largely pro-majoritarian prompting elected politicians to heed or succumb to the demands of the majority.  This means that even when selfish interests do not hold sway over the decision of officials, overregulation would still be the currency since in representative democracies, those tasked with legislation have the tendency to be influenced by the prejudices, fears and anxieties of their constituency. The intractability of this problem in representative democracies means that decisions as to which expressions are appropriate or not would be decided on the basis of numbers leading to a situation in which the beliefs and opinions of minorities would be in constant danger of being suppressed by the majority. 

    The limitations of the negative case for free speech have been pointed out by different scholars. One limitation is that the claim made by the supporters of the negative case that governments are inherently “pro status-quo” and weary of criticism would only give rise to a right to political speech targeting the ideology, policies and performance of the government and its officials, and not to a general right to free expression. 

    The second limitation is that the contention that the government is fallible when regulating free speech because it is extremely difficult to identify appropriate expressions from non-appropriate ones is not only an argument against government regulation of expression but against government regulation in general. Every effort made by governments at regulating in any sector of societal life is besieged by the same difficulty. Hence, as one author put it, “the benefits and harms of ideas are no harder for government to evaluate than the benefits and harms of laws generally.”

    No right to free speech?

    The above discussion, however, should not be understood as a rejection of the right to free speech. It certainly is not an endorsement of the actions of authoritarian and repressive governments who work tirelessly to silence dissent and criticism. On the contrary, it should be seen as an effort to highlight and limitations of the major theories for the right to free expression with the main objective of trying to open up a dialogue so that all of us who advocate for the right could come together to discuss the theoretical underpinnings and ways of improving them. If the right to free expression is going to be defended, those doing the defending, especially in the academia, should thoroughly understand how to do it. Theoretical knowledge goes a long way in creating able defenders, especially in the academia and politics. Our fledgling democracy is in dire need of such personalities.

    Ed.’s Note: Raji Gezahegn (LLM) is a lecturer of Law, School of Law, Wolaita Sodo University. The views expressed in this article do not necessarily reflect the views of The Reporter. The writer can be reached at raji2gezahegn@yahoo.com.

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