This is the first instalment of our weekly guide, Freedom To Write: A Users Guide.
Give me the liberty to know, to utter and to argue freely according to conscience, above all liberties.
– John Milton, Aeropagitica, 1644
Freedom of expression establishes a market place of ideas, promotes the search for truth, enables individual growth and self-fulfilment, and secures the right of the citizen to participate in the democratic process. Free speech allows the publication of inconvenient truths, embarrassing revelations and controversial opinions.
Over time the courts have delineated different kinds of speech, each concerning different subject matter and attracting different levels of legal protection. Each shall be considered in turn.
Political expression attracts the highest level of legal protection because it is at the core of the creation and protection of a democratic society. It is almost impossible for the state to restrict genuine political speech or debate. Writing will be political if it concerns a matter of public interest. This is broadly interpreted by the courts and includes, for example, the behaviour of the police, state housing policy, judicial impartiality, public health and M.P.’s expenses. Writers are free to criticise the government, civil servants and politicians. Even cynical, personal and sarcastic criticism is acceptable so long as it has some factual foundation.
Artistic speech receives a lower level of protection than political speech. Artistic speech includes any work of art, journalism or literature. Section 12 of the Human Rights Act 1998 specifically requires that courts must have high regard for the importance of freedom of expression when dealing with artistic, literary or journalistic material. The European Court of Human Rights does not afford a particularly high level of protection to artistic expression, deferring instead to states’ censorship and censure of material that is deemed morally offensive, obscene, indecent or hateful.
Speech is commercial if it is primarily directed at promoting commercial, economic or financial interests. Commercial speech does not attract a high level of protection because it has less of a social function than political or artistic speech. Commercial speech is regulated by competition law, an area outside the remit of this guide.
RESTRICTING FREE SPEECH
Free speech does not entail total freedom; it is freedom governed by law. There are established exceptions to free speech that allow restriction, regulation and censorship. This guide looks at these exceptions in detail.
The written word can be restricted for the following reasons
- “In the interests of national security, territorial integrity and public safety“
This includes the protection of official secrets, the fight against terrorism and the preservation of international relations.
- “For the prevention of disorder or crime”
This includes the prohibition on writing that stirs up racial or religious hatred or that incites violence against the state.
- “For the protection of health or morals”
This exception covers obscene, indecent and pornographic publications that may be censored or regulated by the state.
- “For the protection of the reputation or the rights of others“
Under this exception writing can be restricted if it is defamatory, if it prejudices the fairness of a trial, or if it reveals private information.
- To prevent the disclosure of information received in confidence.
This exception restricts the publication of information protected under the Data Protection Act 1998, the revelation of journalistic sources, and the breach of confidentiality.
- To maintain the authority and impartiality of the judiciary.
This exception requires that some writing is restricted in the interests of the administration of justice under the Contempt of Court Act 1981.
Next Week: Censorship and Regulation
Last Reviewed: March 2012
(Photo: Speakers Corner, London, by wallyg on Flickr)