That in a free state every man may think what he likes, and say what he thinks. (Baruch de Spinoza).
At first glance the statement of Baruch de Spinoza seems ideal to promote freedom of speech (and expression) but is freedom of speech really without limits?
Recently two lecturers at the Hebrew University of Jerusalem called the Justice Minister Ayelet Shaked a “neo-Nazi scum” and “filth” on Facebook while accusing her of taking part in genocide. Calling someone a “neo-Nazi scum" is both singularly unsophisticated in the first instance and secondly rather offensive, particularly in Israel. The power of bigotry and intolerance cannot be underestimated for its capacity to hurt and offend. Irrespective of its lack of sophistication, is calling someone a “neo-Nazi scum” an expression of freedom of speech? Are there no limits on freedom of speech?
Freedom of speech is a fundamental liberty or right. It is an essential human value which many argue is the basis of democracy. Interestingly, although there are several other civil liberties, such as freedom from slavery, of assembly, of religion, of right to life, and of right to a fair trial to give some examples, freedom of speech is seemingly the most valued of all the freedoms. It is generally regarded as the first of all liberties or rights because, in rejecting freedom of speech, we also deny the right of individuals to express their thoughts and ideas. Directly or indirectly, this in turn restricts both the gaining and dissemination of knowledge.
One of the first resolutions that the United Nations General Assembly implemented on 14 December 1946, was Resolution 59 (I) which proclaimed that "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated". However, there are some fundamental restrictions to individual freedom of speech and we normally understand the limitations when the reason is simple and clear. Shouting fire in a crowded concert hall is not an expression of freedom of speech, rather it is an abuse of it. However, there are other areas where the limits are less clear and more controversial. One such area is the limitation which current democracies set on freedom of expression because of security reasons. President Barak Obama argues that we cannot have complete security in contemporary society without some restrictions on our freedom. And in Israel the need for security is essential.
Another relates to whether offending or causing harm to others should be limited, thereby curtailing freedom of expression. To suggest that freedom of speech and freedom of expression should and can be unlimited is perhaps misguided. For example holocaust denial is not permissible for example in Israel and Germany. On the other hand some would argue that any form of restriction on freedom of speech is inherently dangerous as it can lead to censorship by government eager to control us. Others suggest that it is dangerous to have limitless freedom of speech as it can lead to disharmony. And what about the harm and offence caused to others who are the receiver of hateful speech?
Many philosophers’ support for freedom of speech arose out of the desire to promote religious tolerance. For example, in Chapter XX of Theological-Political Treatise, (1677/2008), Baruch de Spinoza advocated for considerable freedom of speech as he believed people needed to express their opinions and that freedom of speech was beneficial for the development of knowledge: He did, however, also set limits on freedom of speech when it came to the security of the state, such as in the case of calling openly for sedition. To incite rebellion against the established order through speech or action was something Spinoza condemned vigorously. This is something for politicians to think about of both the right and the left.
Another contributor to our understanding of freedom of speech and expression comes from John Stuart Mill. In Footnotes in Chapter II of On Liberty, he boldly argued that there ought to exist full freedom for all people to express their views and beliefs, even if they are regarded as immoral. However, he placed a limitation which today is known as the “Harm Principle”. According to Mill the harm principle applies to laws and constitutional matters, not to social offence. Yet, in Australia Section 18C, speech and acts leading to “offence, insult and humiliate” are illegal but they are not criminal acts as such, and are dealt with by the Human Rights Commission, thus extending the harm principle to social offences.
Stanley Fish, an American literary theorist and legal scholar, takes a different approach. He does not argue in favour of curtailing freedom of speech but rather proposes that “freedom of speech is conceptually impossible”. Fish supports this argument on the basis of the Canadian case about James Keegstra. Keegstra, a school teacher, used his class to vilify Jews in the most prejudicial way and expected his students to repeat such prejudice in their work. Canada has something akin to the First Amendment and Section 2(b) explicitly protects freedoms, including that of beliefs, thoughts and expression, yet Keegstra was convicted under section 319(2) of the Canadian criminal code. Section 319(2) advocates punishment, ranging from a fine to imprisonment beyond two years, for anyone who incites hatred against any specific individual or group. James Keegsta used freedom of speech as his defence but it did not hold ground.
This case illustrates well the paradoxical nature of freedom of speech. Defaming Jewish people by calling them “Nazi scum” would not acceptable in Canada (or Germany or Australia) why should it be acceptable in the name of freedom of speech and expression in Israel?
When we decide what value we should place on freedom of speech in relationship to other human rights, such as security, equality, respect, tolerance and communal harmony we may appreciate that limitations may be inevitable.