Should Freedom of Opinion and Expression be Restricted?

The right to freedom of opinion is a fundamental human right and is one of the building blocks of modern society. There are no circumstances in which it is justified to hinder this right, meaning everyone is free to hold any opinion and belief they choose. It is in the expression of these opinions, whether political or otherwise, where it may become necessary to apply certain restrictions for the greater good.

Freedom of Expression

The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are among many international legal instruments that establish the right to freedom of opinion and expression, including the “…. freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice.” However, the ICCPR also allows the imposition of restrictions on this right, particularly when it concerns the rights or reputations of others or issues of national security and public order. 

Restricting the Freedom of Expression

States must prohibit the advocacy of national, racial, or religious hatred that incites discrimination, hostility, or violence. While efforts to counter such advocacy may be required to safeguard the freedom of expression for individuals and groups, any restrictions on hate speech and related advocacy must be established by law and deemed necessary and proportionate in pursuit of a legitimate objective.

Why it Must Be Restricted?

Considering this, there are two significant reasons why a state may be justified in restricting freedom of expression. Firstly, limitations can be imposed to protect national security, public order, public health, and morals. These broad aims empower the state to restrict freedom of expression when necessary. Secondly, limitations on freedom of expression can be justified when an individual’s expressive conduct appears to “cause” harm or violence to others. This can be seen as an attempt by the state to maintain public order and protect citizens from violent reactions, even if those reactions are unreasonable. Overall, limitations on the freedom of expression are intended to balance individual liberties with competing duties of justice. The state is responsible for justifying these limitations by presenting publicly justifiable reasons that demonstrate the individual owes others a duty of justice to refrain from expressive conduct.

The Issues These Restrictions Introduce

This introduces the issue that the ability to restrict freedom of expression may be swayed by factors that the law does not account for. The limitations are imposed on a principle of proportionality; in restricting a person’s liberty (in this case, free expression), the state must show that an interest is being protected, and the value of this interest is proportional to the liberty being restricted. This is an arbitrary standard, and there is little to stop the state from overstepping its positive obligations and taking advantage of this power. What is to stop the state from silencing a journalist who only aims to critique the government because expressing his opinion would jeopardize public order? It may be very likely to do so, but does that not also include the state’s own positive obligation to maintain that order? Moreover, this may also extend to favoring the greater majority’s views rather than what is fundamentally proportionate. This may be seen in the Pakistani Supreme Court’s decision to limit the Ahmadi community’s expression to proclaim themselves “Muslims” due to the outrage it would provoke among the Sunni Muslim majority.

How These Issues May Be Addressed?

It has been suggested that the principle of proportionality be replaced with a duty-based approach, requiring the state to demonstrate a direct responsibility on the part of the individual concerned. This approach ensures that limitations are not imposed arbitrarily or based on subjective judgments but rather on the individual’s actions and potential harm to others. By focusing on the individual’s duty of justice to refrain from certain expressive conduct, the duty-based approach avoids the pitfalls of a typical proportionality test, where the freedom of expression is merely weighed against competing interests. Instead, the state must show that the competing interests are sufficiently weighty to constitute a claim right held by others and a duty of justice owed by the individual. This places a higher burden on the state to justify limitations and ensures they are based on objective and compelling reasons.

The UN General Assembly’s resolution on Promoting interreligious and intercultural dialogue and tolerance in countering hate speech has done a commendable job of this by deeming the act of damaging religious books or symbols as an act of violence inherently rather than focusing on the consequences that this act may bear. This came after the recent burning of the Holy Quran in Sweden and aims to eliminate hateful and violence-inciting speech and promote tolerance among cultures and religions.

In conclusion, the right to freedom of expression is a fundamental human right, essential for the functioning of modern society. However, like many rights, it is not absolute, and certain restrictions may be necessary to balance individual liberties with broader societal interests.

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