In its modern use, freedom of speech means the freedom of communicating in a variety of formats, including but not limited to the spoken word. The right to communicate may vary from one medium to another, and when scholars and jurists discuss free speech, they focus on a broader freedom to communicate, rather than on the narrow right to speak orally. Therefore, “freedom of speech,” “freedom of expression,” “freedom of the press,” and “freedom of information” are often used interchangeably (even though each is distinctive).
Freedom of speech, under the US constitution, refers to the right to publish – that is, to write, speak, print, or broadcast information without censorship by the state. Related to this is the freedom of the press, which is understood to mean that any policy regarding what should or should not be printed or broadcast is to be determined solely by the managers of the medium in question. In a key free-press case in the US, Miami Herald v. Tornillo, the US Supreme Court held that:
a newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitation on the size and content of the paper, and the treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.
Freedom of expression under various national, regional, and international human rights declarations protects ideas expressed symbolically, as in picketing or participating in a demonstration, whereas freedom of information addresses the public’s statutory right to access information in the possession of government agencies.
The most oft-cited rationale for freedom of speech as a right is that it is vital to citizen participation in a democracy. This is especially the case in the US. Alexander Meiklejohn, whose First Amendment theory has profoundly influenced the free-speech jurisprudence of the twentieth-century US, argued that the First Amendment is primarily designed to absolutely protect the political expression that citizens need in order to effectively participate in the democratic process. Thus, as the landmark case of the US Supreme Court in New York Times v. Sullivan shows, the press must be empowered to ensure that debates on public issues are “uninhibited, robust, and wide-open.”
Historically, the right to communicate as part of freedom of speech finds its most endurable value in the discovery of truth. It is also associated with an individual’s right to self-fulfillment. Article 19 of the Universal Declaration of Human Rights 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.” The UDHR also guarantees against “state suppression or regulation” of speech.
In the US, however, courts remain reluctant to recognize the journalist’s privilege to protect confidential sources when subpoenaed by courts or law-enforcement authorities to reveal information about the source of a news story or give the information needed to complete an investigation. In the US it is not a matter of federal law, but one of state statutes. Internationally, from a journalist’s privilege perspective, the right to communicate is recognized as a human right, and the concept is gaining wide acceptance in international law. For example, according to Article 13 of the American Convention on Human Rights, “no judicial or police authority may or should adopt measures in an inquiry that jeopardize the confidentiality of journalistic sources.” Further, the European Court of Human Rights held in 1996 that journalists can refuse to disclose their news sources unless there are competing interests that outweigh the source protection. More recently, the International Criminal Tribunal for the former Yugoslavia (ICTY) recognized the journalist’s privilege in war reporting when it ruled in 2002 that Jonathan Randal, a former Washington Post correspondent, should not be compelled to verify his source’s statements even if confidentiality was not at stake.
The First Amendment to the US constitution states: “Congress shall make no law abridging . . . the freedom of speech, or of the press.” Still, US courts have resisted a literal interpretation of the First Amendment, preferring instead a balanced approach. A case in point is the “imminent” lawlessness test – a derivative of the “clear and present danger” formula – in Brandenburg v. Ohio that speech may only be limited when there is a likelihood that it poses an “imminent” threat to others.
Germany, like the US, explicitly guarantees a right to free speech and permits some limitations to the right. Article 5 of the German Basic Law states in part that “Everyone shall have the right freely to express and disseminate his opinion by speech, writing and pictures and freely to inform himself . . . freedom of the press and freedom of reporting . . . are guaranteed . . . there shall be no censorship.” Just as in the US, an absolutist interpretation of this constitutional mandate has failed to win support in Germany. In a very significant political expression case in Germany – the Lüth case – the Federal Supreme Court of Germany upheld the notion that a call for a boycott of a film with the argument that the director had Nazi ties is protected as a basic right in a democracy because it leads to “intellectual dialog” and “vigorous public debate.” The court reasoned that when the film director’s private commercial interests are balanced against the public’s right to free expression, it is important to respect the speaker’s right to influence public opinion in the post-war period.
This right to communicate embodies not only the right to receive information but also the right to communicate freely by individuals and the press. Ruling in a commercial speech case, the US Supreme Court held that “where a speaker exists, the protection afforded [presumably by the First Amendment] is to the communication, to its source and to its recipients both to freely express and receive communication. [If] there is a right to advertise, there is a reciprocal right to receive the advertising, and this may be asserted by consumers.”
- Barendt, E. (1985). Freedom of speech. Oxford: Clarendon.
- Bezanson, R. P. (2003). How free can the press be? Urbana, IL: University of Illinois Press.
- Brandenburg v. Ohio, 395 US 444 (1969).
- Branzburg v. Hayes, 408 US 665 (1972).
- Fraleigh, D. M., & Tuman, J. (1997). Freedom of speech in the marketplace of ideas. New York: St. Martin’s.
- Goodwin v. United Kingdom, 22 Eur. Ct. H. R. 123 (1996).
- Martin, R. (1999). Speaking freely: Expression and the law in the commonwealth. Toronto: Irwin Law.
- Miami Herald Publishing Company v. Tornillo, 418 US 241 (1971).
- New York Times Co. v. Sullivan, 376 US 254 (1964).
- The Randal case: IT-99-36-AR73.9 (International Criminal Tribunal for the former Yugoslavia, December 11, 2002).
- Universal Declaration of Human Rights (1948). At www.yale.edu/lawweb/avalon/un/unrights.htm, accessed September 5, 2007.
- Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 US 748, 96 S. Ct. 1817, 48 L. Ed.2d 346 (1976).
- Youm, K. H. J. (2006). International and comparative law on the journalist’s privilege: The Randal case as a lesson for the American press. Journal of International Media & Entertainment Law, 1(1), 1–56.