What follows is an essay written and sent to me by an online acquaintance, Adam Jackson, whose interest lies in the area of freedom of thought and speech. With the recent ferocity of culture war in public discourse, I thought it was a timely and interesting topic. With Adam’s permission, I’ve decided to post his essay here. Copyright of this essay remains with Adam and his views are independent of my own.
Historically it is the fear of government censorship and prohibition of ideas that has led to strident defence of the right to free speech by individuals. The banning of unpopular ideas, backed by force and threat of imprisonment or capital punishment, has a weakening effect on society, and helps to consolidate power into the hands of the powerful. It is the rights of the individual that must take precedence, which is the intent of the proposed model.
The principle of Freedom of Speech is the right to express ideas and opinions, untrammelled by government or wider society. It is a principle fundamental to Western Liberal Democracies, and is encoded in Article 19 of the United Nations Universal Declaration of Human Rights (UDHR). Article 19 states:
“Everyone has the 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”
Complimentary but opposite to Article 19, stands Article 12 of the UDHR, which deals with matters of rights to privacy. Article 12 states:
“No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks”
This short paper attempts to organise rights and responsibilities, to better serve the presumed intent of Articles 12 and Article 19. The Right to Free Speech is widely supported legally and socially in the West, however, privacy rights from free speech are seldom championed. While acknowledging years of legal decisions and precedence enshrining and enforcing rights to free speech, and utilising them as guides in some respects, this paper looks to restructure the implementation of rights to maintain a fair and balanced approach for all individuals. This is to be done while maintaining and reinforcing the spirit of Article 19 to maintain freedoms. The paper offers a basic framework, without delving into exact legal wording and specific incidents.
The Four Quadrants of Free Expression
This essay asserts that there are four quadrants of Human Rights regarding freedom of expression;
1) The Freedom to Speak
2) The Freedom to Listen
3) The Freedom to Not Speak
4) The Freedom to Not Listen
The author suggests that none of the quadrants may take precedence over any other quadrant, and must be balanced to protect individuals from having these rights eroded. Indeed, it will be suggested that the current state of affairs regarding the first quadrant of expressive rights has the Right to Speak dominating the three remaining rights, in legal terms, practical terms, and in the interest of the public. Central to the proposed model is an individual’s ability to exercise freedom of movement within society. This includes the right to movement unmolested, physically and mentally. The suggested model is underpinned by the principle of consent and willingness, in all quadrants. The Freedom to Speak means that speech is only truly free if it is done willingly and with consent. If not, the Speaker becomes a forced Speaker (violating the 3rd quadrant). The Freedom to Listen is only truly free if it is done willingly and with consent. If not, the Listener becomes a forced Listener (violating the 4th quadrant). The Freedom to Not Speak is only truly free if it is done willingly and with consent. If not, the Speaker becomes forcibly mute (violating the 1st quadrant). The Freedom to Not Listen is only truly free if it is done willingly and with consent. If not, the Listener becomes forcibly deafened (violating the 2nd quadrant).
As with current jurisprudence regarding the freedom of speech, this paper suggests the quadrants and assumptions in this model be met with a test of reasonableness. No quadrant is absolute in its protections, as the good running of society sometimes requires the suspension of a right, which will be briefly discussed in the following pages.
The Freedom to Speak
The freedom to share ideas and opinions amongst individuals and groups is essential for the health of individuals and wider society. Governments and wider society must not be able to stifle the free exchange of ideas and opinions of individuals. Both popular and unpopular ideas must have the freedom to be expressed, as one era’s unpopular ideas and opinions become another era’s norms. Examples of this abound and include universal suffrage; divorce and remarriage; rights to religious freedoms; same-sex marriage; and animal rights. Opposition to all of these was at one stage the norm, and without the ability to discuss these norms and question them, progress in society would stall. In this model, an individual has the right to freely share ideas with willing and consenting Listeners. It is important to highlight that the rights of the first quadrant don’t include the right to harass and menace other individuals in the name of freedom of speech. It is the right to impart ideas and opinions, not to berate or menace, especially those you don’t like or those that are weaker or subservient to you. The individual does not have the right to violate the 4th quadrant and talk at unwilling and unconsenting Listeners. Simply voicing ideas and opinions at others, without recognising a right for them to choose to listen or abstain from listening, is solipsistic and erodes that individuals right to freedom of movement.
Exemptions to this right would be speech that is inciting to violence.
The Freedom to Listen
Hand in hand with the first quadrant, citizens must be free to listen to ideas of the speaker, without governmental or societal intrusion. Paternalism of adults regarding acceptable ideas and opinions, by government and society, is unacceptable. Individuals can make assessments and decisions for themselves as to what they want, or don’t want, to listen to.
In this model, an individual has the right to listen to ideas from willing and consenting Speakers. They do not have the right to be a party to a violation of the 3rd quadrant, and listen to unwilling and unconsenting Speakers.
The Freedom to Not Speak
Citizens must be free to refuse to speak, free from governmental or societal pressure. In this model, an individual has the right to not share any ideas, opinions, or utterance, and cannot be forced to.
Exemptions from this Right would include lawful requests for information from law enforcement officers, such as providing your name, date of birth, and residential address, if you are a suspect in, or a witness to, a crime. This would flow on to exemptions in a court of law, where an individual must state the aforementioned details. The freedom not to speak is enshrined in the principle of protection from self-incrimination.
The Freedom to Not Listen
Citizens must be free from intrusive speech, free from governmental or societal pressure. The good running of a society and the protection of an individual’s psychological health demands that a citizen can go about their lawful business un-harried and un-besieged. The Freedom to Speak is not the right to speak at unwilling and unconsenting individuals. If this right was not in place, it is conceivable that an individual may be met in a public place and be confronted with innumerable other citizens all exercising their first quadrant right to free speech. Each citizen would not be harassing per se, but in their totality the citizens would effectively, in fact, be harassing the individual. The Right to Not Listen is to some degree enforced in the United States, where the Captive Audience Doctrine offers some legal protections to individuals in limited scenarios. These include when an individual is in their own home, or another private residence, and when they are on public transport. The protections come from the realisation that an individual needs protection from unwanted speech, in circumstances where they cannot reasonably get away. The weakness in this doctrine as it currently stands is that it assumes a certain amount of resilience and strength of character in individuals, and does not account for those that are physically, emotionally, or psychologically vulnerable. It would deem that those individuals must limit their freedom of movement to avoid unwanted speech, as the speech of others currently takes precedence over a person’s right to not listen. This essay suggests that that situation is a breach of an individual’s Right to Not Listen in public, which affects their right to freedom of movement.
As previously mentioned, as with other quadrants, this right is not absolute and must be balanced by reasonableness. One exemption is that of the education of children. It is unreasonable to suggest that a child could not or should not receive an education, on the grounds that it would breach their Right to Not Listen. Another exemption may be a person’s place of employment, where speech heard is a part of their employment. Another exemption still may be the lawful directions of law enforcement officers and emergency services personnel. These exemptions and situations would need to be considered and debated in parliament, and refined by the judiciary on case contestation.
The fear that lead to the First Amendment in the United States of America in 1791, and to the establishment of Article 19 of the UDHR in 1948, is the fear of censorship by those in power. It is the fear that an idea might not be discussed or an opinion might not be voiced. And it is a fear that is well founded, with high-population countries and areas including China (1.38+ billion), Indonesia (260+ million), the Middle East (220+ million), and the majority of African countries (1.2+ billion), all scoring poorly on individual freedoms of expression. The fear is not just contained to free speech in public places, but free speech in private places, with various authoritarian regimes controlling what is said and expressed in private residences through fear and intimidation. Ultimately it is a concern regarding the freedom of what can be said, with a secondary concern of where it may be said. If the subject being spoken of is controlled through government intimidation, the where in the equation is of little matter. The where of the equation only becomes pertinent when what is being spoken of is unhindered. Once the subject of speech is unfettered, the location of delivering the ideas and opinions in question becomes of central concern.
Designation of public areas may solve the issue of maintaining balance between the four quadrants, and maintaining the rights of each. This would alleviate the fear of censorship of what is being said, while allowing abundant and reasonable, but not unrestricted, designations of where it may be said. It may perhaps be compared with the ‘Speakers Corner’, which are well-established in the United Kingdom and several other countries around the world. However, these Speaker’s Corners tend to be small in area, and this essay would suggest larger and more numerous designated areas, perhaps legislated to be linked to area population. In this way, no idea or opinion is censored or prohibited by government or wider society, in any way whatsoever. A speaker in quadrant 1 is in the designated area willingly and with consent. As to is the listener in quadrant 2, who has voluntarily attended to listen to the speaker. The individual in quadrant 3 who does not wish to speak, is left to their own devices and may not be forced to speak at any location, be it inside or outside a designated area. The individual in quadrant 4, who does not wish to be inundated with unwanted speech, is free to avoid the designated areas where they know ideas and opinions are being discussed. In this way their individual freedoms are ensured. Once in a designated area, a Listener loses any right of complaint as to what they are hearing (with the exemption of breaches such as speech inciting violence).
Importantly, at no time does this affect the ability of an individual to discuss ideas and opinions with other individuals in any public place, as long as it is a private discussion that does not breach any of the quadrants. The freedom to exchange ideas and opinions in any place remains unchallenged, while the Speaker does not breach other quadrants. What can be considered and defined a private discussion in a public place may require codification, as one person speaking at once to one hundred other individuals in a public place, for example, may not reasonably be considered a private conversation. Nor does this model negatively affect in any way an individual’s right to free speech in any private residence or establishment, or government building hired for a specific private purpose. The test that must be performed is this: Does my free exercise in one or more of the quadrants impact on the rights of other individuals in other quadrants? If the answer is yes, then too much power and priority has been given to your rights as opposed to those of other individuals.