Limitations
For specific country examples see Freedom of speech by country, and Criminal speech.According to the Freedom Forum Organization, legal systems, and society at large, recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights.[SUP]
[40][/SUP] Limitations to freedom of speech may follow the "
harm principle" or the "offense principle", for example in the case of
pornography,
religious belief or
hate speech.
Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both.[SUP]
[41][/SUP]
Members of
Westboro Baptist Church have been specifically banned from entering
Canada for
hate speech.[SUP]
[42][/SUP]
In "
On Liberty" (1859)
John Stuart Mill argued that "...there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered."[SUP]
[41][/SUP] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."[SUP]
[41][/SUP]
In 1985
Joel Feinberg introduced what is known as the "offence principle", arguing that Mill's harm principle does not provide sufficient protection against the wrongful behaviours of others. Feinberg wrote "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end."[SUP]
[43][/SUP] Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm.[SUP]
[43][/SUP] In contrast Mill does not support legal penalties unless they are based on the harm principle.[SUP]
[41][/SUP] Because the degree to which people may take offense varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of factors need to be taken into account when applying the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.[SUP]
[41][/SUP]
The Internet and Information Society
Jo Glanville, editor of the
Index on Censorship, states that "the Internet has been a revolution for
censorship as much as for free speech".[SUP]
[44][/SUP] International, national and regional standards recognise that freedom of speech, as one form of freedom of expression, applies to any medium, including the
Internet.[SUP]
[7][/SUP] The
Communications Decency Act (CDA) of 1996 was the first major attempt by the
United States Congress to regulate
pornographic material on the
Internet. In 1997, in the landmark
cyberlaw case of
Reno v. ACLU, the
U.S. Supreme Court partially overturned the law.[SUP]
[citation needed][/SUP] Judge
Stewart R. Dalzell, one of the three federal judges who in June 1996 declared parts of the CDA unconstitutional, in his opinion stated the following:[SUP]
[45][/SUP]
"The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates. [. . .] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. [. . .] As we learned at the hearing, there is also a compelling need for public educations about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that Government’s permissible supervision of Internet contents stops at the traditional line of unprotected speech. [. . .] The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff’s experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos." Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the
First Amendment protects."[SUP]
[45][/SUP]
The
World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003 makes specific reference to the importance of the right to freedom of expression for the "
Information Society" in stating:
"We reaffirm, as an essential foundation of the
Information society, and as outlined in Article 19 of the
Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that 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. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the
Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers."[SUP]
[46][/SUP]
According to
Bernt Hugenholtz and Lucie Guibault the
public domain is under pressure from the "commodification of information" as item of information that previously had little or no economic value, have acquired independent economic value in the information age, such as factual data,
personal data,
genetic information and pure
ideas. The commodification of information is taking place through
intellectual property
http://en.wikipedia.org/wiki/Freedom_of_speech#Limitations
