Limitations on freedom of Speech 2
This paper analyzes European human rights law and the limitations it imposes on freedom of speech in response to the statement, “Freedom of speech must sometimes be restricted in the name of democracy.”
nd 2 Assignment“Freedom of speech must sometimes be restricted in the name of democracy”Author: Pol A. Stocker Romero Examiner: Diana Morina University: Linnaeus University th Term: 4 term Subject: 1SK156 - European Human Rights Law Level: Bachelor1 (7)Content“Freedom of speech must sometimes be restricted in the name of democracy” .... 1Content ...................................................................................................................... 2Appendices .................................................................. ¡Error! Marcador no definido.1. Introduction to Freedom of Speech ................................................................ 32. Discussion .......................................................................................................... 43. Conclusion......................................................................................................... 54. References ......................................................................................................... 61. Introduction to Freedom of SpeechFreedom of speech is a right regulated on the European Convention of Human Rights under Art.10 where it says:“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.2. The exercise of these freedoms, since it carries with it duties and responsibilities, … (Rainey, McCormick and Ovey, 2020. P.488).This right has some unique characteristics, as the long list of restrictions placed on it, or the duties and responsibilities that holds. It is also worth mentioning that it can be conjugated with other rights as Art.9 Freedom of thought, conscience and religion, as it is on those aspects where the need to express ideas might arise, or Art. 11 Freedom of assembly and association, in case of willingness to express it in conjunction with others (ibid).Limitations and constraintsIt can be easily observed that there is a extended and subjective list of limitations placed on the right, as it could be marked the “protection of health or morals”, or the interest of “national security, territorial integrity or public safety”, all concepts that can be plenty of ambiguity or intended lack of definition, and then be used to limit the said expressions. A case where that ambiguity or better said, that intended lack of definition gives the states room to constrain the right is the case of Müller and others v. Switzerland, where artistic expression is repressed in protection of “morals”, and where one could see also the rise of diverse opinions, as it is the one expressed by judge Spielmann who opposes the majority and understands that it has occurred a violation of Art.10 while the others support the state of Switzerland.One of the limitations to freedom of speech that aside from its subjective character it deserves special attention on those times it is “Hate speech”. In (Rainey, McCormick and Ovey, 2020. Pp.495-500), the topic is treated in an extensive manner, and while it seems that the court has some clarity about “holocaust denial” being considered hate speech, or inciting violence, it also seems that there is a regionality associated to it, and when it crosses that region the lines and the strength in recognition of hate speech or other genocides becomes weak and blurry. Some of the characteristics that it indeed seems to be part of the courts analysis in those cases are “context”, for example on the case mentioning a Basque cartoon mocking the events of 2001 on the U.S th during September 11 in which the court seems to give a great deal of importance the proximity of the events on time. Or the character of theindividuals and the intentions reflected as it is reasoned in the “Pastors” case about a parliamentary who intentionally added comments against the Jewish community. Those notions regarding identity are analysed in (Almagro, Hannikainen and Neftalí Villanueva Fernández, 2021. Pp.948-950), where the authors realise two experiments in Spain to see the effects that the identity of the speaker my have, along with other aspects as their intentions and the outcomes. The study does not conclude that identity of the speaker or the outcomes of the speech matters, tough It reveals that progressives are more prone to categorise offensive speech than conservatives and give some relevance to the intention. Looking back at the rulings from the court, one can see, that, this findings/criterion diverges from “Pastors case”, where the identity and moreover the public parliamentary character of the speaker comes to relevance in the holding.Internet dimensionAnother dimension of freedom of speech would be the digital world and the internet, as defended in (Momen, 2020), perhaps in a blunt manner and lacking a real discussion, internet as a sphere of communication and information gathering it is of great importance nowadays. I would add some reflexions to the article by introducing for example the propaganda present in media as Instagram or Facebook, that used in a certain way by certain actors it is prone to manipulate the public by spreading false news (fake news) or using bots and comments in multiple platforms. Still, for the purpose of the present debate, I agree in general terms that freedom of speech on internet and the digital sphere should be granted and protected by states. What perhaps would be interesting to analyse is the theoretical lack of critical thinking in most of modern democracies, attributed mostly among the youth, that leads the governments to pursue certain censorship on social media as Instagram as it can be seen in Australia, United Kingdom or Spain (Wertheimer, 2026). One could argue on the other side, that instead of censorship, governments could pursue the strengthen of the educational systems that are the tool that prepares all individuals of the state for adulthood, and the foment the use of arguments and critical thinking to discern when a specific way that is used in the choose of certain words or expressions, as to adopt a critical attitude when encountering unsourced information spreading on different platforms. One could also argue that the need to strengthen prohibitions/limitations can be portraited as paternalistic, as it relies on fear/legal punishment instead of reinforcing the critical thinking abilities of citizens and freedoms, and fomenting the diversity of opinions and thoughts on the public debate, as it is remarked in Art.10 (1).2. DiscussionIt has been introduced in the one hand the freedom of speech as it appears on the European Convention of Human Rights, in the other hand the limitations and constraints that appear both in legal cases of the court and theoreticalarticles treating the topic. In this section the question regarding the “necessity of limitations” it will be further discussed.It is hard to discern concepts in a world that polarized. As it has been said, while most of the population and legal actors agree on matters as the Holocaust on the Second World War, other topics as limitations due to obscenity in art, or freedom of access and use of internet, or even what aspects of the expression are more important, the speaker, background, or the context, are rather more complex to agree on. It is reasonable to assume that a democratic society benefits from diversity on views and opinions, as it is emphasized in Art.9 and Art.10 of the ECoHR, as on the transmission of those. Understanding that any view/thought would be valid, the debate would maybe focus on those views that may fall in discriminative attitudes, as some religious views that affect LGTBQ+ rights, or some speech directed towards minorities as racism, or speech promoting dictatorial or undemocratic behaviours.There are two possible scenarios to follow from there. The first scenario would be (no limitation of the rights, unlimited freedom of speech), and the second (limitations on the rights when it comes to the promotion of discrimination or undemocratic practices). On this binary one could easily lie towards the limitations in order to protect society, as in appearance it is the most attractive choice in stand of morality. Opposing that view it could be introduced that it relies on a social majority standing for a certain moral outcome/attitude, and so, if that majority would change, then the limitations would change too, this time directed towards the opposite direction, trying to limit those who limited them. Having the world experienced different systems of governance, as it could be Fascism or the Nazi doctrine, and now democracy, what is clear is that certain systems are detrimental in loss of life and violence towards discerning opinions, while others as democracy, allow diversity and protect human life. In this ground, if a limitation should be stablished, may it be the limitation of instituting a system of governance that attacks human life and promotes violence, and in pursue of it, the limitation of the speech directed to harm or promote violence towards individuals. One consideration would be that it is important to discern the ability, position and intent to harm and discriminate from the expression of dissent over specific topics, as for example, it could be the coexistence different views towards the positive/neutral/negative effect of migration on a certain state without falling on the discrimination or promotion of hate for it. And that it is also important to understand that if the educational system would improve the foment and training of critical thinking, certain ideas/attitudes would possibly be rejected by society without the need of limiting its expression.3. ConclusionPhilosophical doctrines as utilitarianism by Jeremy Bentham and Jhon Stuard Mill stand that one should promote the best for the greatest amount of people, based on that, one could deem the protection of expression as the best for thegreatest number of people, without any limitation aside of the clear promotion of harm or discrimination by targeting groups/individuals with the clear intention of them suffering and experiencing any kind of violence or the promotion of undemocratic/dictatorial values, as those two concepts are equally harmful for the majority of society and have been proven dangerous for human life in recent historical events. One important remark is that through fomenting a strongest education in critical thinking, limitations should disappear on need and practice over time. And a final remark, disagreeing over a topic should not fall into the category of discrimination or hate, one should remember that the systems that defend a unilateral view over whatever aspects of society, are often dictatorships or undemocratic regimes. While democratic regimes are known for their protection of diversity, and ideally to be able to rely on well formed and informed citizens with critical capacity to stand in favour of democracy by their own will rather than for paternalistic constraints top-bottom from the state.4. ReferencesAlmagro, M., Hannikainen, I.R. and Neftalí Villanueva Fernández (2021).Whose Words Hurt? Contextual Determinants of Offensive Speech.Personality and Social Psychology Bulletin, 48(6), pp.937–953.doi:https://doi.org/10.1177/01461672211026128.Momen, M.N. (2020). Myth and Reality of Freedom of Expression on theInternet. International Journal of Public Administration, [online] 43(3),pp.277–281. doi:https://doi.org/10.1080/01900692.2019.1628055.Rainey, B., McCormick, P. and Ovey, C. (2020). JACOBS, WHITE, ANDOVEY : The European Convention on Human Rights. S.L.: Oxford Univ Press.Wertheimer, T. (2026). Spain announces plans to ban social media for under-16s. BBC. [online] 3 Feb. Available at:https://www.bbc.com/news/articles/c5y2nddvmryo.1 (1)