On freedom of expression

by Valentino Giudice on

In this blog, post I will outline my take on freedom of speech and of expression. I will use the two phrases interchangeably, or closely to it, to refer to the right to engage in acts of speech, in a rather broad sense, not limited to verbal language.

I will first discuss my understanding of the relationship between this freedom and the law. I will then briefly consider some other specific aspects of freedom of expression. Finally, I will cover my general opinion on the matter, which is a highly liberal and permissive one.

Freedom of expression and the law

I am not a lawyer and this is not legal advice.

The right to freedom of opinion and expression is recognized by the Universal Declaration of Human Rights. The document is, however, not legally binding. The International Covenant on Civil and Political Rights commits states to respect certain rights, including freedom of thought and of expression, but with some limitations. In practice, countries differ widely in this regard. People in Western democracies largely enjoy freedom of speech, of the press and of assembly, but these liberties are nowhere absolute.

This section will focus on the United States and the European Union. The topic at hand is much vaster than this post. An exhaustive illustration of all relevant restrictions (and protections) could not fit herein, but some sprinkles of information will.

Behaviours such as fraud, dealing in child pornography, credible threats of illegal violence and defamation do not fall within the scope of protected speech.

Artistic and literary works of authorship, including software, are automatically covered by copyright (or “author’s rights”) according to international treaties. This only applies to the works themselves and not to ideas. Exclusive rights have limitations and exceptions that help to preserve freedom of speech.

Laws concerning digital rights management can hamper the use of limitations and exceptions to copyright. Together with software patents, DRM systems also restrict freedom of expression through computer code.

In the United States

The First Amendment to the US Constitution prevents the government from abridging freedom of religion, of speech, of the press or of assembly or the right to petition. This protection, however, has exceptions.

Hate speech is allowed in the country, as it is covered by the First Amendment. Sexual obscenity, on the other hand, is considered to be unprotected and it can therefore be censored.

The US have a history of restricting the export of encryption software. It even used to be included in the Munitions List and regulations on the matter still exist to this day. Programs on application stores (such as by Microsoft and Apple) have to comply.

The free speech flag, a symbol of personal freedoms, was created as a response to attempts of censorship in the US based on DRM law.

Besides all recognized exceptions to it, several blunt violations of First Amendment rights occur. Organizations like the Foundation for Individual Rights and Expression fight against these abuses.

The prosecution of WikiLeaks founder Julian Assange has raised serious concerns about freedom of speech and the public’s right to know. Assange has received support from multiple media groups, Amnesty International, Reporters Without Borders and several other organizations, as well as a large number of individuals, including whistleblower Edward Snowden, political scientist John Mearsheimer, political commentator Tucker Carlson and many other journalists.

In the World Press Freedom Index, compiled by RSF, the United States rank below several other countries, including most of the EU.

In the European Union

Different countries in the European Union have significantly different laws and legal systems.

Freedom of expression is protected by the European Convention on Human Rights and by the Charter of Fundamental Rights of the European Union. These documents, however, allow for limitations for certain stated purposes.

Racist or xenophobic hate speech is forbidden in the Union, but member states differ in how they address it. A recent press release called for the criminalization of hate speech and disapproved of the use of freedom of expression as a “shield” for it.

Several EU states have blasphemy laws. Hard-core pornography is regulated by individual countries, but most allow its possession, production and sale to adults.

Following the 2022 Russian invasion of Ukraine, the EU censored the RT and Sputnik Russian news outlets, citing the need to counter disinformation. The decision was criticized by European Digital Rights and the European Federation of Journalists, but upheld by the Court of Justice.

Personal data receives strong legal protection. Member states are required to reconcile the right to privacy with freedom of expression and information.

In Italy

The freedom to express thoughts and of the press are protected by the Italian Constitution, but the same article also prohibits exhibits offensive to public morality. Several restrictions exist in the country.

Vilification of the nation or its constitutional institutions or armed forces, desecration of the flag and offence to the honour or prestige of the president are illegal. Propagating ideas based on racial or ethnic superiority or hatred is also prohibited, as are organisations aimed at discrimination on certain grounds. Public blasphemy (bestemmia) against God is illegal, as is publicly offending a religion by vilifying objects of worship. Insult (the infringement of another’s honour) used to be a crime and is now a civil wrong.

Italian courts have enforced restrictions on the use of art pieces in the public domain, with effects comparable to copyright on the works.

Physical newspapers in Italy must be registered on a court registry in order to be legally published (not necessary for an online blog) and one needs to join the Order of Journalists to practice the profession (a peculiar and controversial norm). In the World Press Freedom Index Italy ranks below most other EU countries.

The protection of freedom of speech in the country extends beyond limitations on government censorship. The Workers’ Statute grants employees the right to express their thoughts in the workplace and forbids employers from investigating their opinions on political, religious or social topics.

Non-governmental censorship

Governments aren’t alone in taking actions to prevent public communications, thereby engaging in censorship.

If, when speaking a certain idea, one risks being arrested and jailed by employees of the state, one isn’t free to express it. If speech is legal, but at the risk of being beaten up or killed by some gang, one is equally unfree. Whether those expected to carry out the punishment are government-sponsored or mafia-sponsored really doesn’t make a lot of difference for the victim. Either way, the right to free expression is infringed.

Non-governmental authorities may take it upon themselves to limit the expression of individuals under their lead. As an example of this, parents of underage children may force them to say certain things and keep them from saying others far exceeding the amount of control needed for the children’s own sake.

Social media censorship

Social media platforms are used by many as one of the primary tools for public self-expression. The companies running them, however, can remove anything they wish and even ban accounts altogether. This gives them a lot of power to influence public discourse.

Content-neutral free speech platforms that only remove that which would otherwise threaten their functionality, utility or existence (such as spam and illegal material) do exist. Censorship-resistant options based on free and open source software and decentralized communication protocols are also available.

Some platforms make it easier than others to speak anonymously. This allows users to express themselves without fear of social or professional repercussions. Many people may need this protection. Consider, for example, those living in oppressive religious environments: an apostate in an Islamic theocracy or a gay boy in a family of Christian fundamentalists. Anonymity can shield them while they share their personal experiences and interact with others like them.

Tools of expression

Public access to tools which facilitate expression can be empowering.

In the world of software, instruments useful for freedom of expression include editors for text, images, videos, audio and 3D models, as well as automatic translators and tools that can improve accessibility for the disabled. These programs are most useful when widely available as free software because software freedom can enhance other kinds of freedom.

My take

Freedom of expression is not a law. It is an idea, a principle and a human right. Some laws simply happen to implement some specific aspects of it.

I consider myself to be a free speech maximalist. Lack of abuse through government censorship is not sufficient. Instead, actual and effective access to freedom of speech is needed, along with a culture which encourages self-expression.

Rather than try to condense the following in one paragraph, I will list simple individual points:

The current level of freedom of expression is not sufficient and, while some of the much-needed progress lies in the context of politics and of the law, most of it is cultural and societal. Free software controlled by users is part of what’s needed, but it would be unwise to treat as a technical problem that which mostly isn’t.

There are multiple reasons for my highly permissive stance on freedom of expression.

I regard freedom of speech as a necessary cornerstone of a healthy democracy. If the people are to make collective decisions, they ought to be able to openly discuss and challenge ideas. If an ideology is unpopular enough, that of censoring it might become a common desire. However, all individuals should be empowered and granted essential rights, not just the majority. Guarding free speech is essential to preserve democracy itself for future generations and to determine the scope of all other rights.

Censorship by social media platforms carries its own bag of issues. Here, I don’t argue that limiting content on one’s own server is immoral or that it should be illegal. What I think, however, is that maximally content-neutral social media platforms are better for society and should be preferred for general-purpose use.

Banning certain ideas from spaces used for public expression, be it through the law, through an extreme amount of public censure or through the choice of private entities that own such spaces, comes at the risk of creating eco chambers where those with banned opinion assemble in isolation. This is dangerous in at least two ways. It leaves those people unchallenged, while also giving them a sense of victimhood, potentially leading to radicalization, and it makes it harder for those who aren’t part of these groups to learn about what they say and to actually understand them.

Limiting someone’s freedom of speech also impairs everyone else’s ability to listen. This doesn’t just include fans of the censored ones. Those who would simply like to be informed about their position are also impacted. The fact that someone has said something often makes news and can only be verified with access to the original source. Censorship can prevent fact-checking.

In addition to the usefulness of free speech, liberty has inherent value and self-expression is something most care about being able to do. It’s not just an instrument to achieve other goals, it is a fundamental goal on its own. Advocating for freedom of speech is akin to supporting the ability to avoid pain and suffering, to have one’s dignity preserved and to continue living. What makes freedom of speech different is how much cheaper, in terms of required resources, providing it is.

As for the idea that the right to free speech should be understood to include the freedom to openly endorse censorship, it’s easy enough to see. If we must protect the right to express wrong opinions, then endorsement of censorship is one of them and must therefore be protected.

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