Freedom of Expression

Freedom of Expression in Election Law

A universal right that includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of a person’s choice. This freedom includes the possibility to criticise and oppose, publish political material, campaign for election and advertise political ideas. This right also implies the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives. It requires a free press and freedom for other media channels, which should be able to comment on public issues without censorship or restraint and be able to inform public opinion.

Freedom of Expression in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In March 2011, the United States co-sponsored a procedural resolution in the Human Rights Council extending the mandate of the special rapporteur on the promotion and protection of the right to freedom of opinion and expression. The resolution was adopted by consensus on March 24, 2011. U.N. Doc. A/HRC/RES/16/4.

On July 5, 2011, the United States provided observations on the Human Rights Committee’s Draft General Comment 34 on Article 19 of the International Covenant on Civil and Political Rights. General Comment 34 was adopted in 2011. The United States Observations on the Draft are excerpted below.

Developments

1. The United States Government appreciates the opportunity to respond to Draft General Comment 34 regarding Article 19 of the International Covenant on Civil and Political Rights.7 2. The United States strongly agrees as the Committee stated in paragraph 2 of its draft General Comment that “[f]reedom of opinion and freedom of expression are indispensable conditions for the full development of the person” and that they “constitute the foundation stone for every free and democratic society.” The United States maintains robust protections for freedom of expression, as provided for in the U.S. Constitution and the laws of the United States. The United States government does not punish or penalize those who peacefully express their views in the public sphere, even when those views are critical of the government. Indeed, dissent is a valuable and valued part of the U.S. politics: democracy provides a marketplace for ideas, and in order to function as such, new ideas must be permitted, even if they are unpopular or potentially offensive. The United States also has a free, thriving, and diverse independent press—a feature that existed before the advent of electronic and digital media and that continues today. The United States takes extremely seriously its obligations under the Covenant and under other human rights treaties to which it is Party, including its obligations related to Article 19. Given the importance the United States places on the freedom of opinion and expression, it has a strong interest in the Committee’s Draft General Comment. Much of the Committee’s guidance is useful in terms of its views and recommendations on how to best implement Article 19, but the United States would like to focus its observations on a few key areas of the Draft General Comment that either would benefit from improvement or that the United States considers to be problematic. These include: the application of Article 19(3), the relationship between Articles 19 and 20, blasphemy laws, access to information, as well as observations on a few other paragraphs.

Details

I. Application of Article 19(3) 3. The United States agrees with the Committee that the right is the norm and the restriction is the exception. The United States also agrees that any restrictions on freedom of expression must meet a strict test of justification. In fact, in ratifying the Covenant, the United States issued a declaration stating that it is the view of the United States that “States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant. For the United States, article 5, paragraph 2, which provides that fundamental human rights existing in any State Party, may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations.” In U.S. constitutional practice, restrictions on expression are subjected to a strict scrutiny test and content restriction must be shown to be narrowly tailored to meet a compelling governmental interest.

More about the Issue

4. In general, the United States believes the draft’s section on “The Application of Article 19(3)” should be streamlined to make clear the threshold premise that any restrictions on expression must comply with the requirements of Article 19(3), namely, that such restrictions are only such as are provided “by law” and “necessary.” The United States is of the view that such restrictions on expression must be prescribed by laws that are accessible, clear, and subject to judicial scrutiny; are necessary (e.g., the measures must be the least restrictive means for protecting the governmental interest and are compatible with democratic principles); and should be narrowly tailored to fulfill a legitimate government purpose, such as the protection of national security (e.g., countering dissemination of weapons-making instructions for terrorist purposes), public order, public health and morals (e.g., countering child pornography), and the rights and reputations of others (e.g., countering copyright infringement and libel). Given that the two limitative areas (for respect of the rights or reputations of others, and for protection of national security or of public order, or of public health or morals) are often used as pretext for unduly broad restrictions on expression, it is imperative that the Committee emphasize the importance that any restrictions on expression be necessary and in law.

5. Specifically, the United States believes that the Committee should make clear in paragraph 22 that any restrictions on freedom of expression must comply with Article 19(3) rather than saying that restrictions should not put the right in jeopardy, which could be misinterpreted to allow restrictions on expression that go beyond the exceptions allowed in Article 19(3) Similarly, the United States believes that the Committee’s suggestion in paragraph 23 of “public safety”—offered as an example of grounds for permissible restrictions on other rights under the Covenant, that is not applicable under article 19(3)—risks confusion and should be deleted, given the great potential for overlap between public safety and public order.

Freedom of Expression in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): 6. In paragraph 24 of the Draft General Comment the Committee states “[a]ll allegations of attacks on or other forms of intimidation or harassment of journalists, human rights defenders and others should be vigorously investigated, the perpetrators prosecuted, and the victims, or, in the case of killings, their representatives, be in receipt of appropriate forms of redress.” The United States believes the latter clause should be clarified to state those whose rights under Article 19 are violated should have access to effective remedies, as is stated in the source cited by the Committee in this paragraph.

7. In paragraph 25 of the Draft General Comment, the Committee discusses Article 19(3)’s requirement that any restriction on freedom of expression must be provided for by law. The United States presumes “law” includes both laws passed by democratically-elected legislatures and independent judicial decisions and therefore we see no need to include “and, where appropriate, case law.”

8. While the United States agrees that treason laws and provisions related to national security that impact freedom of expression should be carefully drafted, paragraph 31, as currently drafted, is overbroad and is not reflective of Article 19(3). The paragraph states “[i]t is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.” There may be the rare situation where such persons share information that is considered to be in the legitimate public interest that is also contrary to national security and thereby may be restricted pursuant to Article 19(3). Similarly, while we do not object to the general thrust of the Committee’s broad assertion that it is not “generally appropriate to include in the remit of a state secrets law such categories of information as those relating to the commercial sector, banking and scientific progress,” there may be instances where scientific or technological information is also related to national security and therefore could be restricted under Article 19(3), so long as all of the requirements of Article 19(3), as discussed above, are met.

9. In paragraphs 29 through 33 of the draft General Comment, the Committee proceeds to elaborate the grounds for permissible restrictions on expression without first identifying, as it does later in paragraph 34, that “[r]estrictions must be ‘necessary’ for a legitimate purpose.” However, the Committee should first make clear, consistent with its description in paragraph 23, that the only legitimate purposes are those in Article 19(3), subparagraphs a and b. Further the Committee should also clarify that for a restriction to be “necessary,” it must be the least restrictive means for protecting one of the legitimate purposes described in 19(3), it cannot be overly broad, and must be narrowly tailored to prohibit the least amount of expression possible.

10. The Committee’s discussion, in paragraph 35 of the draft General Comment on the principle of proportionality, also appears disconnected to the discussion in paragraph 23. General Comment 27, to which the Committee cites in paragraph 35, concerns an article of the Covenant unrelated to Article 19, the topic of this draft General Comment. The principle of proportionality, as discussed in paragraph 35, appears to depart from the strict test of justification as discussed in paragraph 23 and as is required for any permissible limitation of the freedom of expression under Article 19(3). The United States respectfully recommends that the Committee revise this section for greater clarity, precision reflective of the language in Article 19(3) and the principles discussed in paragraph 4 of these Observations.

More about Freedom of Expression

II. The Relationship Between Articles 19 and 20 11. The United States has a reservation to Article 20 given its potential to be interpreted and applied in an overbroad manner. The United States respectfully submits that the Committee’s discussion of “the relationship of articles 19 and 20” could be clarified in a few respects. For example, the draft states that “[t]he acts that are addressed in article 20 are of such an extreme nature that they would all be subject to restriction pursuant to article 19 paragraph 3.” It then proceeds immediately to propose that “a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3, which lays down requirements for determining whether restrictions on expression are permissible” (emphasis added). The United States urges the Committee to redraft that section to emphasize that any prohibition on expression thought to fall under Article 20 also needs to meet the requirements for restrictions on expression under Article 19(3). Therefore such restrictions on expression must be in law and must be necessary to meet the objectives specified either in 19(3)(a) or 19(3)(b). (See discussion of these requirements in paragraph 4 above).

12. Given the strict requirements that restrictions on expression must meet under Article 19(3), the United States believes, contrary to the implication of the draft comment, that it will rarely be the case that expression can be prohibited under Article 20. To be prohibited under Article 20, expression must first constitute advocacy of religious, national or racial hatred that constitutes incitement to discrimination, hostility or violence, and its prohibition must be provided by law, and necessary to respect the rights or reputations of others or to protect public order or national security. To be necessary, a restriction on expression, including a prohibition, must be the least restrictive means for protecting the governmental interest, must restrict the least amount of speech possible, and must be compatible with democratic principles. Consequently, the United States believes that only a narrow amount of expression could ultimately be prohibited under Article 20. Indeed, to protect public order or national security, it is not necessary to prohibit all advocacy of racial, religious or national hatred. There are other less restrictive (and more effective) means of protecting public order in the face of this type of expression. For example, a combination of efforts can protect public order in the face of hateful expression: ensuring robust protections for freedom of expression of all individuals allows everyone to have a voice and to counter any offensive speech, encouraging government leaders to speak out against such speech, promoting initiatives to create environments of mutual respect and understanding, reaching out to affected communities, providing conflict-resolution services, and rigorously enforcing anti-discrimination and violent hate crimes laws to contribute to a climate of respect. The efficacy of these types of actions in maintaining public order in the face of hostile expression negates any premise that a prohibition on advocacy of hatred, even when some may consider it amounting to incitement to hostility, discrimination or violence, is necessary for public order or national security. In fact, there are instances in which such prohibitions can actually contribute to discrimination, hostility or violence.

13. This is not to say it is never necessary to prohibit any hateful expression—there are some types of advocacy of national, religious, or racial hatred, namely incitement to imminent violence, or to imminent hostile acts such as when genuine, intentional threats of violence or intimidation are made to an individual, whereby prohibition is a legitimate government response to protect public order given the potential immediacy of the harm that may be caused by the speech. Given the difficulties in countering or preventing violence resulting from incitement to imminent violence or to hostile acts due to its immediacy, it is an appropriate governmental response to prohibit such expression to maintain public order without risking the underlying human right.

14. Paragraph 53 of the draft General Comment could be made stronger by stating explicitly that the requirements of Article 19(3) (see paragraph 11 above) apply to prohibitions under Article 20.

Developments

III. Blasphemy Laws 15. The United States agrees with the Committee in paragraph 50 of the draft that as a legal matter “[b]lasphemy prohibitions and other prohibitions of display of disrespect to a religion or other belief system may not be applied in a manner that is incompatible with the paragraph 3 or other provisions of the CovenantÉ” However, as a practical matter, experience has shown that it is nearly impossible to have blasphemy prohibitions that do not unduly restrict freedoms of religion or expression and that are not applied in a discriminatory manner. Such laws generally do not meet the test provided for in Article 19(3) because they are not necessary to protect the rights or reputation of others, and are likely unnecessary for maintaining public order, as they seek only to protect particular viewpoints. Further, it is contrary to the freedom of expression and democratic values to provide what is essentially a “heckler’s veto,” that is, to allow an individual who finds something insulting to have the ability to restrict another’s freedom of expression. Restrictions on expression are not permissible under Article 19(3) simply because one person or group finds a particular expression to be offensive. Indeed, the United States would also disagree with the apparent suggestion in the draft that provisions on blasphemy, or on disrespect for religion or other belief systems need not be repealed “other than in the specific context of compliance with article 20.”

16. In fact, blasphemy laws are often used to deter and/or punish dissent or criticism of religious or political leaders. Indeed, such provisions are often used against members of religious minorities or dissident members of majority religious groups. As such, they can undermine the human rights of those expressing minority or dissenting views, for example, by restricting their freedom of expression or their ability to practice their religion if it is not in line with the majority view. The United States believes it is unlikely that blasphemy prohibitions can be applied in a manner that is compatible with the rights enshrined in the Covenant, and recommends that the Committee clarify and underscore the imperative—in this context—of the promotion and protection of the fundamental freedoms of expression and religion, and the application of article 5 of the Covenant. This is particularly the case when such laws are applied to criticisms of institutions, opinions, or other subjective topics that are not subject to verification.

Freedom of Expression

In relation to the international law practice and freedom of expression in this world legal Encyclopedia, please see the following section:

Human Rights

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General

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Freedom of Expression

In relation to the international law practice and Freedom of Expression in this world legal Encyclopedia, please see the following section:

International Human Rights

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See Also

• International Human Rights
• Freedom Of Expression

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See Also

• Civil Liberty
• Civil Right
• Legal Right
• Citizen Freedom
• Political Liberty
• Constitutional Right
• Political Right
• Freedom of Speech

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Notes and References

1. 7 Draft General Comment No. 34: Article 19, Human Rights Committee, hundredth session, Geneva, Oct. 11-29, 2010. Available at: https://www2.ohchr.org/english/bodies/hrc/comments.htm.

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Notes and References

1. 7 Draft General Comment No. 34: Article 19, Human Rights Committee, hundredth session, Geneva, Oct. 11-29, 2010. Available at: (internet link) www2.ohchr.org/english/bodies/hrc/comments.htm.

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See Also

• Election Law
• Electoral Laws
• Electoral Legislation

Hierarchical Display of Freedom of expression

Law > Rights and freedoms > Political rights
Education And Communications > Communications > Communications policy > Control of communications > Censorship
Education And Communications > Information and information processing > Information policy > Law relating to information > Right of reply

Freedom of expression

Concept of Freedom of expression

See the dictionary definition of Freedom of expression.

Characteristics of Freedom of expression

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Translation of Freedom of expression

• Spanish: Libertad de expresión
• French: Liberté d’expression
• German: Redefreiheit
• Italian: Libertà d’espressione
• Portuguese: Liberdade de expressão
• Polish: Wolność słowa

Thesaurus of Freedom of expression

Law > Rights and freedoms > Political rights > Freedom of expression
Education And Communications > Communications > Communications policy > Control of communications > Censorship > Freedom of expression
Education And Communications > Information and information processing > Information policy > Law relating to information > Right of reply > Freedom of expression

See also

• Censorship
• Right of reply