On Freedom of Speech

Je suis Charlie

Je suis Charlie

The Charlie Hebdo massacre causes an uproar in the western world and the subsequent “Je suis Charlie” immediately raises the campaign for freedom of speech and freedom of expression. George Clooney fueled the campaign when, wearing a ‘Je suis Charlie’ pin in Golden Club Awards, said “Millions of people – not just in Paris but around the world, Christians and Jews and Muslims, leaders of countries all over the world – they didn’t march in protest, they marched in support of the idea that we will not walk in fear. We won’t do it. So Je suis Charlie.

In Hong Kong, the Chief Executive CY Leung openly criticized an article and a book (titled Hong Kong Nationalism) from an university student union for advocating independence, raising concerns that freedom of speech is increasingly compromised in Hong Kong.

Save for a few Islamist theocratic regimes or communist countries, freedom of speech and expression has been adopted and embraced around the world. ICCPR enshrines freedom of expression in Article 19. First Amendment to United States Constitution protects freedom of speech. Article 27 of Hong Kong’s Basic Law provides that Hong Kong resident shall have freedom of speech.

Freedom of speech and expression is a fundamental human right. It is not only important in an instrumental sense (e.g. to facilitate a free market of ideas) but also in an intrinsic sense: the natural urge to express your limitless ideas, and deepest feelings.

However freedom of speech and expression has never been an absolute right, and must be restricted in certain circumstances. Defamation and libel are clearest examples. Excessive noises in apartment cause nuisance. Lawyers, accountants and doctors cannot give negligent or dishonest advices. Restrictions are permissible as long as they are proportional.

The restrictions only proscribes what one cannot do, leaving much latitude to what a person can do. You can advice, chat or brawl, as long as you don’t cause damages. Number of verbal exchanges, if countable at all, unquestionably outweighs legal cases brought to court.

What governs these countless instances of verbal exchanges cannot be law but something less binding but no less influential: civility.

Civility sounds grandiose, but it can be  as a simple as good manner. It will not be a good occasion to exercise your right to laugh and joke in a funeral, nor to discuss divorce with the couple in marriage ceremony.

More substantively, freedom of speech and expression, as a fundamental right under a liberal democracy, premises a liberal man. A liberal man cannot be a man with no moral idea whatsoever but he neither needs to be a saint. A person who holds the view of perfectionist liberalism will see a liberal man as a rational agent with at least some basic virtues, which should certainly include civility.

Following this line of logic, freedom of speech and expression should best be exercised in a rational manner with much civility. This raises the standard than merely following the law. Comments for  the sole purposes of insulting and derision are not the proper exercise of freedom of speech and expression, although it is not illegal, provided no damages have been done. Saying ‘you are retarded’ is legally permissible but not very proper. 

Civility is increasingly important in modern liberal democracies because we begin to cohabit with people of different cultural backgrounds. Hate speech is forbidden for obvious reason but there is speech and expression less damaging than hate speech but sufficient enough to harm the sensibilities of a group of people. 

In Otto-Preminger-Institute v. Austria [1994] ECHR 26, a film portrayed Virgin Mary as having erotic tension with the Devil, and Jesus as a mentally disabled child. Although the case concerns with freedom of religion, but the expressions in the film seem too much to me as a civil manner of exercising the freedom of speech and expression.

Of course, sensibilities do not necessarily warrant legal protection. You can insult anyone at any time as long as you do not cause any legal damages. However again, as I have said, this can be an abuse of the proper exercise of freedom.

I am not proposing unreflective tolerance. Tolerance without reflection is simply indifference. Socrates’ piercing questions on the gods certainly do not justify his death sentence. He has every right to question and to raise fundamental issues of knowledge. His speech and expression should be tolerated, if not encouraged, for raising deep reflections.

On one hand, freedom of speech and expression cannot be abused as a license for every insulting comment. On the other hand, tolerance must be exercised for speech and expression that raise legitimate questions. Portraying Jesus as a mentally disabled child, as Otto-Preminger-Institute has done so, may not be appropriate but writing a deeply researched book that questions the historicity of Jesus should be warranted.

At the end of the day, it is a matter of balance. Law only prescribes the minimum and for freedom of speech and expression to function, civility is a key element. To prevent the freedom of speech from descending into cacophony of voices, we must exercise our sound judgments.

Extended reading: Freedom of Speech (Stanford Encyclopedia)

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