To what extent can the right to freedom of expression be legitimately restricted | Example Law Dissertation
The main purpose of this paper is to address the pertinent scopes and restrictions prevalent to exercise the right to freedom of expression in this modern age. For this purpose, the paper will refer to certain regional and international instruments along with discussion of relevant cases. However, it will cover the historical context of the right to freedom of expression in relation to democracy, autonomy, and community. Besides, to understand the extent and limitation of the right to freedom of expression this paper will consider all the major international human rights treaties. Focusing on the restrictions to the right to freedom of expression, this article will evaluate the current restrictions to this particular right discussing the scopes of some of the speeches such as contemptuous speech, seditious speech, hate speech, obscenity, defamatory speech, hate propaganda, libel and slander, fighting words etc. Finally, this research descriptively discusses the elements of three-part test which is recognised for restricting the right to freedom of expression. This particular test includes that in order to limit the right to freedom of expression, the restriction must be “provided by law”, it must “pursue a legitimate aim”, and it must be “necessary in a democratic society”.
BACKGROUND AND CONTEXT
The right to freedom of expression is regarded as one of the most significant rights for a democratic country for the development of its people. This fundamental right has been emerged as an essential one through the passage of time. However, if we trace the modern root of this right, it can be found that it came into being by its recognition under the 1968 English Bill of Rights and subsequent debate within the Parliament in the 17th century. Further, this right was prolonged by two succeeding instruments i.e. the United States Bill of Rights and the French Declaration of the Rights of Man and the Citizen, 1789. However, it has finally been recognised by the first international instruments namely the Universal Declaration of Human Rights (UDHR), 1948 which is now regarded as a source of customary law.
As regards this right, Mr. Justice Cardozo very lucidly stated in the case of Palko v. Connecticut, “[f]reedom of thought and speech... is the matrix, the indispensable condition of nearly every other form of freedom.” Nowadays, it has become a form of historical development of political, social, and educational institutions of every society. As a consequence, the proper upholding and safeguard of this right pave the way of developing the representative democratic system in a way of establishing pluralism, tolerance, and broadmindedness among the people. The right to freedom of expression is related to many other rights such as the “right to information,” the “right to share,” the “freedom of press,” the “freedom of opinion”, the “right to freedom of religion,” the “right to know,” the “right to privacy” etc. Without exercising the right to freedom of expression with satisfaction, these rights cannot be exercised. The people have the right to share their ideas and views complying with certain restrictions as documented under many regional and international instruments. Therefore, it is said that even though this right is an essential one, it is not an absolute right.
It is very obvious and usually expected that the right to freedom of expression should not necessarily include the right to say whatever an individual person wishes and/or pleases to express in an ordered society. For example, with certain exceptions seditious speech, hate speech, obscenity, defamatory speech, hate propaganda, libel and slander, fighting words are mostly prohibited in many countries. So far, it has been a settled principle that in every restriction to the right to freedom of expression, there must be advance and express ways as to how and when this right is restricted. Under the regional and international instruments and case precedents, it has been recognised that to determine legality of restriction or interference of this right by the state, some criteria must be fulfilled such as the restriction must be prescribed by law; must “pursue a legitimate aim”; and must be “necessary in a democratic society”. Besides, this right needs to involve the balancing of competing public interests. There must have a balance against public health and safety considerations including public interest. It has been proven that striking the right balance between the freedom of expression and its restrictions is difficult both regionally and internationally. Truth be told, in both well-established democratic countries as well as undemocratic countries, it is really a difficult task.
Example Law Dissertation - Law Essay Writers UK
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