A Western History of Free Expression and Free Speech Podcast Transcript

This episode we discuss the history and complexities of freedom of expression and free speech. We trace the origins of these concepts from the Enlightenment period to the Bill of Rights in England and the First Amendment in the United States.

We begin to explore the differences between the European and American approaches to free expression and explore the nuances of the laws and regulations surrounding speech. Finally, we look at international declarations and covenants related to freedom of expression and the challenges of enforcement, with a brief discussion of differences between legislative and judicial determination of speech regulations.

Key Takeaways

• Freedom of expression and free speech have a rich history that dates back to the Enlightenment period.
• The European and American approaches to free expression differ in terms of the scope and limitations of speech regulations.
• The interpretation and application of free speech laws can vary, leading to surprising outcomes in court cases.

Taryn Ward  Hi, I'm Taryn Ward,

Steven Jones  I'm Steven Jones,

TW.  and this is Breaking the Feed, Social Media: Beyond the Headlines

SJ.  We're taking a closer look at the core issues around social media, including the freedom of expression or free speech, as it's sometimes known. To better understand the role that social media plays in our everyday lives and society. 

TW.  Last episode, we started to trace the history of the “Freedom of Expression” and “Free Speech”, this episode will pick up that history with the enlightenment and work our way through to lay the groundwork to discuss the existing global framework next time.

SJ.  So, let's start with the Bill of Rights. The first one in England in 1689, not often thought about much in the context of the Bill of Rights, I think almost everybody would take you to the to the US Bill of Rights, including Wikipedia, if I did search, but England 1689 a freedom of speech in Parliament, no interference or prosecution, if you said something that was, you know, otherwise, not great. It's set a precedent in a way for protecting some parts of speech from from government interference, the opposition of one assumes couldn't be prosecuted things of the Prime Minister, and it is a feature of UK politics today that you can say some pretty unpleasant things in Parliament and get awayof it. And of course, this if the rule is good for the people at the top, then that's going to influence other developments, you know, subsequently, isn't it?

TW.  Yeah, absolutely, and that's a great way to talk about the Enlightenment period more generally, I think. So. We're talking here about the late 17th and 18th century, and some familiar names to many of you, Descartes, Locke, Voltaire, John Stuart Mill, Rousseau, you know, we see a lot of emphasis on individual liberty, so thought, speech, press all these related things, and democratic ideals more broadly. So, when we think back to our introductory episode, and the values that freedom of expression is designed to protect, we can see how this started to take shape, in a new way during this period, and then, of course, we have the French Revolution, and the Declaration of the Rights of Man and of the Citizen. This was in 1789, and the the important provision for us today is the following.  

The free communication of ideas and opinions is one of the most precious of the rights of men. 

TW.  Around this time. In France, we see a lot more public discourse, political clubs, pamphlets, public debates, newspapers, often all political in nature, and this is becoming more and more common in really becoming part of how how people saw themselves and identified themselves in, and it was hugely influential, of course, on what happened in the United States, you know, we had the American Revolution, and then the United States Constitution Bill of Rights, the full text of the First Amendment is worth is worth sharing. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. 

TW.  So, there's a lot packed into that statement, you have the establishment clause, the Free Exercise Clause, the Free Speech Clause, Free Press Clause, the Assembly Clause, Petition Clause all sort of crammed into the single statement. So, the Free Speech Clause, if we just sort of like wrestle that out, is limited to the following. Congress shall make no law abridging the freedom of speech. What could be simpler? We've looked back at history; we've seen all of this come together. Now we have this very simple statement. Easy from here on out, right?

SJ.  Oh, if only that had turned out to be true. I mean, you when you read, when you read that out, I thought, that is such an economical way of, of saying such important things like the they just framed this beautifully, right? It was just these are the things you cannot do, and all of that makes sense. And that economy is brilliant, right? And, and this is we've discussed discuss this offline between ourselves a lot, a lot, because we talk about American politics a lot. But, you know, they assumed too much. I think the framers of the Constitution in the Bill of Rights just assumed too much like it never occurred to anyone to say somebody who is being investigated for significant crimes or as a convicted felon shouldn't stand to be President or an elected official, because one assumes they just thought that that was obvious, and to be fair, you know, if people respect traditions and the rules and just the way the things are supposed to be done, that is true, but then you come, you know, your characters come along, who sort of ignore the fundamental basis for the unwritten rules? And you, you that causes chaos? So yes, that statement is very simple. The problem is that issues around free freedom of speech and free expression all lie in the nuance, which isn't covered by that very economical number of words, right?

TW.  Very true, and even the wording of this is the root of, in many ways, the split between the European "Free Expression" approach in the American "Free Speech". So, you know, at this point in time, although these principles were floating around freedom of expression, free speech, and more than floating around by now, they were really deeply woven into the history and traditions of Europe and then the United States, writing it down in this way, was an important split, and this is where we have to really look at the wording, because it's important, and I know this isn't the most exciting thing, because we're looking at, you know, exactly how things are worded and how it fits together. But this really is important. 

TW.  So, going back for a second to the Declaration of the Rights of Man and of the Citizen. It was framed this way. The free communication of ideas and opinions is one of the most precious of the rights of men. This is a broad statement in a lot of senses. But in one important way that distinguishes it from the free speech clause in the First Amendment. It's not a freedom from and certainly not explicitly framed as being a freedom from government or with specific limitations. It doesn't specify limitations on any one either, including governments, it simply marks out expression is one of the most precious of the rights of men. The free speech clause is very different. It says the following. Congress shall make no law abridging the freedom of speech. This is still broad, in many ways, so many ways, and we'll dive into that. But it's not framed as a general principle. It's a very specific freedom, and a specific freedom that limits Congress's ability, in particular, to restrict free speech. 

TW.  Now, later, this would include state governments, so the incorporation doctrine, which applies certain provisions in the Bill of Rights to the states to the due process clause of the 14th Amendment. But that core idea that the articulation of this right is a right against Government interference or restriction remains, and this is why, although the changes that were happening in the United States were in many ways parallel to and even connected with what was happening in Europe, in France, in particular, we see a clear gap between the idea of the Freedom of Expression in Europe and Free Speech in the United States.

SJ.  It's a really interesting nuance, again, that the devil is in the detail, as he always is. But one of the themes that you sort of pull out of this even going back to the Bill of Rights, and the that established, you know, that British parliamentarians could not be prosecuted for what they said was freedom, the freedom to say, what you needed to say, or what you wanted to say, was fundamental to the democratic process, that democracy was founded on debate, and the exchange of ideas and arguing, potentially, I imagine, sometimes quite violently, because things are deeply held convictions, but not actually physically violently. Like that's, that's the alternative, right? We'll fight about it with words in Parliament or within the public square, or we can actually fight about it with cudgels or, you know, God forbid guns later. But that is absolutely fundamental right to the to this and how, as an American, who's, you know, moved to Europe, the UK, which is despite the intentions of some people in the UK, still Europe, how do you see those that that nuance in the difference between freedom of expression and freedom of speech actually play out in in everyday life? And particularly, is there is there something you can point out online, that you say, oh, yeah, this is different.

TW.  I think there are a lot of different things. I mean, the way the freedom of the press is treated is one big example. In the US, it's sort of all lumped in together, and in Europe, people are a lot more willing to place restrictions on what the press can say and do. They're sort of treated as a as a special case that allows a little more interference. And again, I'm oversimplifying now, but I think that's that's one approach. I also have yet to hear a child in this country come home and say something like, you can't tell me what to say or not to say it's my free speech, I have rights, and I think that's very much an ethos that that people in the US grow up with and carry with them without a lot of understanding or nuance. But this idea of, you know, of the rights that we have, free speech is sort of the one that that that people hold on to in in a special and different way. But I think it again, the lack of understanding is not ideal, but it seems to be here one of many other rights that is balanced. Well, it enjoys a special status in the US.

SJ.  Right? Right, because it's specifically called out in the first of the amendments, which is, you know, I guess that gives it a special place. Because they thought of it as special. That was the first thing they thought of right? 

TW.  Yeah, yeah, exactly. It was, it was literally first and not by accident. So it is different. Now, since then, there have been some attempts to bring this all back together. So in 1948, we saw the Universal Declaration of Human Rights. This is a declaration, not a constitution, not a treaty. But this is a significant milestone. So the key points here are this idea that everyone has a right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, and regardless of frontiers. This was really huge in 48 countries voted in favour of this declaration, and it was a really diverse mix. So just to name a few, Afghanistan, Argentina, Canada, Colombia, Cuba, Denmark, Ecuador, Egypt, France, Greece, Haiti, India, Iran, Iraq, Luxembourg, Mexico, New Zealand, Norway, Pakistan, Paraguay, Sweden, Syria, Turkey, the United Kingdom, the United States and Venezuela. Diverse in many ways, right? These countries from all over the world have very different populations, very different histories, and concepts of free expression. All signed on to this.

SJ.  Some of those names you wouldn't expect to see.

TW.  Partially because it was a declaration. So there was no there were no teeth to this, and and I think sometimes Americans view the European idea of free expression in a similar way. Like we have this very clear amendment that says we have this right and who protects us against. The European Free Expression feels a little bit squishier to us, and it feels like more of a declaration and I don't think that's really fair or accurate. But But I think there is sometimes almost a confusion between declarations like this one in law in in Europe, not too long after we had the International Covenant on Civil and Political Rights. And this was adopted by the United Nations General Assembly in 1966, and then entered into force in 1976. As of 2022, there were 173 Parties and six additional signatories who have not ratified it. Many of these countries, though, have reservations, understandings and declarations that limit the applicability. So, although it is meant to have teeth in a way that the Universal Declaration of Human Rights didn't have, enforcement is is not straightforward.

SJ.  Yeah, isn't that isn't always the way, you know, these organisations don't have a police force, the WHO doesn't have a police force, the UN doesn't have a police force, how are they going to enforce these things? So great, we will agree. I mean, I think we can say this, that freedom of expression is important freedom of speech is important, 173 countries plus six hangers-on certainly agreed in 1962. So So what's the what's the problem? Well, I mean, even if he can, if we all agree, these core principles and the First Amendment free speech clause in the US Constitution in Article 19, and the Universal Declaration of Human Rights, these principles are broad enough and And largely, that's intentional, to allow for other rights and to allow for changes in society and technology. But it means how they're interpreted and applied can can vary quite a bit, and sometimes, those variations are surprising.

TW.  Yes, and this is where it can be confusing and annoying, but also really, really interesting. So a few quick examples. Let's Let's start in Europe. So let's start with the European Court of Human Rights. A few a few cases

TW.  It was a case clarifying that freedom of expression encompasses not just information or ideas that are favourably received or gardens and offensive, but also those that offend, shock or disturb. Pretty important. Another case that held a website liable for defamatory comments posted by users. So this one is pretty shocking to Americans. A case overturning the conviction of a journalist who was convicted for aiding and abetting racial hatred because of an interview conducted with representatives of the neo-Nazi group. The the court in this case ruled that the conviction violated the journalists right to freedom of expression. But the fact that a case even got this far I think would be surprising to a lot of people in the US. A case in favour an employer who dismissed an employee after monitoring communications, including personal messages on a work related account. 

TW.  And, you know, we we also have to look at some some unusual or surprising outcomes in the United States. The first one, political spending by corporations, associations and labour unions is apparently a form of protected speech under the First Amendment. There's a case upholding the right of the Westboro Baptist Church to picket military funerals with science displaying, let's say controversial and offensive messages, but deeply, deeply offensive, I would say hateful messages. And another case, during that the government's refusal to register trademarks that might be seen as disparaging, in this case, the name of a band, The Slants, violated the free speech clause. Some of these cases, I was lucky enough to cover in law school, some were decided after and I looked at on my own, but each of these cases was either surprising at the time or had a really important influence on our understanding of these rights, or the facts of the case and the details around what happened were so shocking and interesting that it merited including them in this list. One of the really interesting things about this area of the law, though, is looking carefully at the facts of the case concerned why this case, how did this case, make it to the highest relevant court and thinking about whether and to what extent the facts made the difference? Hard cases make bad law, as they say, but they do still make law, and they can certainly sway public opinion one way or the other.

SJ.  I mean, some of those are really egregious Westbrook to say they were offensive, as you sort of clarified is a an understatement. They were dreadful, and it's me saying it. So anybody who doesn't know me will know about that is but you know, they were really bad at and you would hope, or at least, I would hope that the UK court or a European Court would have banned those you would hope. But it is interesting, right? I mean, I'm just thinking about the difference between the US and the European approach it from what from what you've said, and tell me if I'm wrong, but what you've said is, Congress, and states actually can't pass any law, which limits the freedom of expression and includes the press, whereas in the UK and Europe, we can, which means that as social and political will changes, and there are downsides to this, of course, but as as social mores change, we can actually pass laws that will say this now is hate speech, and you are not allowed to say those things you can't, you know, say Nazi supportive things in Germany, that's a long standing law, for example, which presumably, given some of the protests you see on TV is not a rule in the US, or indeed, in the UK, sadly, but but maybe it's better that lawmakers, elected officials are making law than having judges having to make those determinations on the facts of the case, which, as you said, are in many cases very hard, and therefore potentially leading to bad law. I mean, I'm not a lawyer, and I'm, it just seems that way to meet to me that, you know, perhaps it is better to be able to legislate, and therefore change the law later than to to just hand this over to judges who are not elected, obviously. But what do you think? I mean, this is this is really your area?

TW.  Well, I think this is a really important point, and I'm really glad you said this, because although what the First Amendment says, is that Congress shall make no law and that extends to other governments. That's not actually what it means at all. Congress and state governments make laws all the time, that restrict our ability to say different things where we can say them, one, we can say them, if something is considered to be obscene, you know, there, there are lots of exceptions to it. Even saying it as an exception isn't doesn't truly do it justice. But it's not the case that that there are no regulations in the US that concerned speech that are made by regulators by elected officials. In fact, they're all over the place. So you don't have to look very far. The question is, whether they have a good enough reason to really and again, huge oversimplification. It's more complicated than that, but, but in a lot of ways, that's what it boils down to, is this the kind of speech that is excluded from protecting is really the first question, and then if it's not, can the government articulate a strong enough reason to put this restriction in place and, you know, we'll dive in probably next Next time or the episode after that in talk about exactly what these exceptions are, and exactly how this operates, because it is really, really complicated. But if I've left anyone with the impression that the First Amendment means what it seems to me on its face, it's good to clear that up right away. 

SJ.  Because of course it doesn't!

TW.  Of course it doesn't. 

SJ.  And that's why there's a Supreme Court and appeal courts and all those other things. I guess. There is a definite there is a different difference for me in the UK Government, I've in my lifetime has definitely suppressed certain things like pictures of the Princess of Wales topless, were suppressed in the UK press, even though they were available online and in Europe, there were exposays about spy agencies that were not allowed to be published in the UK for a long time, but were published everywhere else. And it's not like international commerce in the Internet doesn't mean that those things spread, and I guess that is one of the problems that governments have now is that, as we said in the beginning of the first episode, global free expression was developed at a time where there wasn't the internet, there weren't even necessarily roads, and now there are definitely roads, and there is definitely internet, and that makes applying these rules difficult in in the context of the 21st century.

TW.  Yeah, yes, in the UK example you just brought up is a really interesting one, because in so many ways, the UK in the US approach things similarly. But but there are these other areas of the law where you can see that US law developed as a reaction to the way the UK was doing things, and I think in some ways, this is an example. And you know, when you think about the Royal Family in particular, we don't we don't have one of those in the US for one thing, that's sort of the point of the existence of the US in the first place. But the idea that the way that restrictions on free expression have evolved in the UK, reflect the fact that this is historically a monarchy, and in the US, it was a reaction against that. And so when you think about what the government can restrict, and what they do, in fact, restrict were they're two very different paths, and I think when you think about where you see the the biggest gaps, you can often trace it back pretty easily to to that split. 

SJ.  No, that that makes sense, and to be fair, to the UK as well. Our press has behaved very badly in the past, possibly worse than my experience of dealing with the North American press. So, some limits are possibly not unwelcome by the populous, and I think that most people in the electorate favourite some form of regulation, they probably disagree on exactly what they want regulated, which I'm sure we will get to in future episodes, because that is the crux of the matter, isn't it?

TW.  I'm sure, and speaking of future episodes, next time, we'll take a closer look at the existing freedom of expression global framework. In the meantime, we'll post a transcript of this episode with references on our website. 

SJ.  Until next time, I'm Steven Jones,
TW.  and I'm Taryn Ward.
SJ.  Thank you for joining us for Breaking the Feed, Social Media: Beyond the Headlines.