freedom of expression Flashcards
John Stuart Mill’s vision of free speech + Harm Principle
speech can only be restricted if it directly harms others
eg, hate speech laws contradict with Mill’s theory - prohibit certain expressions outright
free speech advocates
voltaire
thomas jefferson
noam chomsky
modern challenges of freedom of expression
misinformation
fake news
cancel culture
ai-driven censorship
Foucault and Derrida
If words can harm or uphold oppression, they may need regulation—this view supports restrictions on harmful speech
Linguistic Determinism (Sapir-Whorf Hypothesis)
changing how we talk can change how we see the world
Handyside v. United Kingdom (1976)
ECtHR ruled that freedom of expression includes the right to offend, shock, or disturb.
Although the conviction was upheld, the case laid a strong foundation for protecting controversial speech, as long as restrictions are lawful and necessary in a democratic society.
Garaudy v. France (2003)
French writer Roger Garaudy’s conviction for Holocaust denial was upheld.
The ECtHR ruled his speech was not protected under Article 10, as it violated the European Convention’s core values of tolerance and non-discrimination.
Vejdeland and Others v. Sweden (2012)
People who distributed anti-gay flyers in a school were found guilty—even though it wasn’t violent, it spread intolerance.
The court said insulting minority groups can be restricted to protect others’ rights.
Delfi AS v. Estonia (2015)
An online news site was held responsible for hate speech in its comment section. The court said platforms can be liable if they don’t act on harmful content.
Schenck v. United States (1919)
created the “clear and present danger” test. Speech that causes immediate harm (like urging people to break the law in wartime) can be restricted.
Brandenburg v. Ohio (1969)
A KKK leader’s speech was protected because it didn’t incite “imminent lawless action.”
This case replaced the “clear and present danger” test with a stricter rule:
Speech is only illegal if it is:
Intended to cause immediate illegal acts, and
Likely to cause them.
✅ Free speech was strengthened with a higher bar for restriction.
What did R.A.V. v. City of St. Paul (1992) say about banning hate symbols?
The Court struck down a law banning hate symbols like swastikas.
It said the government can’t restrict speech based on viewpoint, even if that speech is hateful.
Snyder v. Phelps (2011)
The Westboro Baptist Church’s protest at a funeral was ruled protected speech because it involved public issues and was done in a public place.
✅ Being emotionally offensive isn’t enough to restrict speech in the U.S.
What did the UN say in Faurisson v. France (1996) about Holocaust denial?
The UN Human Rights Committee ruled that France was justified in punishing Holocaust denial.
Under Article 20(2) of the ICCPR, hate speech can be restricted, even if it’s political or historical.
✅ International law allows limits on speech that incites hatred.
What does General Comment No. 34 on Article 19 (2011) say about free speech?
This interpretation says you can express political, religious, and historical views, even if they’re offensive.
But speech that incites hatred, violence, or discrimination must be restricted under Article 20(2).
✅ Free speech isn’t absolute under international law.
article 10 - ECHR
freedom of expression
Paragraph 2 allows restrictions if:
○ Prescribed by law,
○ Necessary in a democratic society,
○ To protect public safety, morals, or others’ rights.
article 17- abuse clause - ECHR
stops people from using their rights (like free speech) to destroy other rights or democracy
guillotine effect”—certain extreme expressions (e.g., hate speech, Nazi propaganda) get no protection at all.
These are excluded outright, without any balancing test under Article 10(2).
Some speech is so harmful, it’s cut off from legal protection completely
hobbes vs locke
Hobbes (Conservative Method)
* Political power justifies itself; liberties threaten peace and must be limited.
* In the ECHR context, aligns with the early use of Article 17 to suppress extremist speech.
* Fear of instability leads to preemptive exclusion of provocative speech.
Locke (Soft Liberalism)
* Liberty is central and only limited when it infringes on others’ rights.
* Rights pre-exist the state and should be respected unless public interest demands restriction.
* Supports Article 10(2) balancing — proportionality, necessity, and duties.
What was decided in A. R. v. Keegstra (1990) and how did Hutchison critique it?
Case: A teacher was prosecuted for spreading antisemitic ideas.
The Supreme Court upheld the conviction, calling the speech “low value.”
Hutchison’s critiques:
Courts shouldn’t decide what’s “likely to be true.”
It prioritized group identity over individual free speech.
Claimed hate speech opposes democratic values, even if it’s political.
Used values-based reasoning to weaken protections in the Oakes test (minimal impairment & proportionality).
Canada (Human Rights Commission) v. Taylor (1990)
Taylor ran a phone line with antisemitic messages.
He was told to stop, but didn’t—so he was jailed.
Hutchison’s main problems with the case:
The law didn’t allow a truth defense or require intent.
It applied even to private calls.
The punishment was too harsh.
The Court ignored the value of free speech just to allow censorship.
Saskatchewan Human Rights Commission v. Whatcott (2013):
Whatcott handed out anti-LGBTQ+ pamphlets based on his religious views.
The Court struck down vague parts of the law but still banned speech that causes hatred.
Hutchison’s critiques:
The Court said hate speech “silences” people—but didn’t prove it.
They ignored that his speech was political and religious.
They relied on “common sense” instead of real proof of harm.
Harm-based framework
Use a cost-benefit analysis: weigh the severity of the restriction against the demonstrated harm of the expression
courts must demand a factual evidence
focus on specific context
