Freedom of speech and expression The United Nations Universal Declaration of Human Rights, 1 adopted in 1948, provides, in Article 19, that: 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.  Technically, as a resolution of the United Nations General Assembly rather than a treaty, it is not legally binding in its entirety on members of the UN.
Furthermore, whilst some of its provisions are considered to form part of customary international law, there is dispute as to which. Freedom of speech is granted unambiguous protection in international law by the International Covenant on Civil and Political Rights which is binding on around 150 nations. In adopting the United Nations Universal Declaration of Human Rights, Ireland, Italy, Luxembourg, Monaco, Australia and the Netherlands insisted on reservations to Article 19 insofar as it might be held to affect their systems of regulating and licensing broadcasting.
The majority of African constitutions provide legal protection for freedom of speech. However, these rights are exercised inconsistently in practice. 1. The United Nations Universal Declaration of Human Rights, adopted in 1948, provides, in Article 19, The replacement of authoritarian regimes in Kenya and Ghana has substantially improved the situation in those countries. On the other hand, Eritrea allows no independent media and uses draft evasion as a pretext to crack down on any dissent, spoken or otherwise.
One of the poorest and smallest nations in Africa, Eritrea is now the largest prison for journalists; since 2001, fourteen journalists have been imprisoned in unknown places without a trial. Sudan, Libya, and Equatorial Guinea also have repressive laws and practices. In addition, many state radio stations (which are the primary source of news for illiterate people) are under tight control and programs, especially talk shows providing a forum to complain about the government, are often censored.
Also countries like Somalia and Egypt provide legal protection for freedom of speech but it is not used publicly. South Africa is probably the most liberal in granting freedom of speech, however in light of South Africa’s racial and discriminatory history, particularly the Apartheid era, the Constitution of the Republic of South Africa of 1996 precludes expression that is tantamount to the advocacy of hatred based on some listed grounds.
Freedom of speech and expression are both protected and limited by a section in the South African Bill of Rights, 2 2. South African Bill of Rights, chapters 2 of the Constitution. Section 16 makes the following provisions: Freedom of expression (1) Everyone has the right to freedom of expression, which includes- (a) Freedom of the press and other media; (b) Freedom to receive or impart information or ideas; (c) Freedom of artistic creativity; and (d) Academic freedom and freedom of scientific research.
Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, commercial speech such as advertising, and time, place and manner restrictions. Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy, such as racism, sexism, and other hate speech are almost always permitted. There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. 3. First Amendment to the United States Constitution
Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), interests in “fair” political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance.
Flag desecration has continually, albeit controversially, been protected by the First Amendment, despite state laws to the contrary. A Constitutional Amendment has been introduced to contravene the First Amendment’s protection on flag burning, but it has failed to acquire the requisite enactment by all the states. Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence. The freedom of speech is regarded as the first condition of liberty.
It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum.
Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc.
These declarations expressly talk about protection of freedom of speech and expression. 4 Why to protect freedom of speech? Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech – 1) For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion.
That is to say, it assists in the discovery of truth. 2) 2) Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment. 4. European convention on Human Rights and fundamental freedoms 3) For expressing belief and political attitudes – freedom of speech provides opportunity to express one’s belief and show political attitudes.
It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. 4) For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.
Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of speech and expression, the basic fundamental rights of human being. It is also to be examined that what is judicial trend in interpreting the freedom of speech and expression provisions.
The study also covers the Comparison between the approaches of both countries as far as freedom of speech is concerned. Freedom of Speech in India Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”.
Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A. K. Gopalan case, observed,6 “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. It therefore includes the right to propagate one’s views through the print media or through any other communication channel e. g. the radio and the television.
Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. 5. Preamble of Constitution 6. A. I. R-1950 In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.
We can see the guarantee of freedom of speech under following heads.
• Freedom of Press Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse.
The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities. The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.
Right to Information Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents.
Even, Right to Information Act-2005, which specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of Constitution of India. One can conclude that ‘right to information is nothing but one small limb of right of speech and expression. 7 7. Right to Information Act-2005