Conflict of rights and interests

In 2011 the UN Office of the High Commissioner for Human Rights organized expert workshops on the prohibition of incitement to national, racial or religious hatred. This document is the contribution from Florence Jaoko, Chairperson of the Kenya National Commission on Human Rights, to the workshop held in Nairobi. The paper "examines the legal framework, (international, regional, constitutional and legislative) that address these issues and the standards used to ensure a proper balance we will also examine other institutional frameworks such as policy and mechanisms for redress including judicial interventions. The background information has dealt with various regional mechanisms and other country specific situations; [Then it] deal[s] with the Kenyan Situation in light of international and regional conventions and decisions."

"Free Expression and Democracy takes on the assumption that limits on free expression will lead to authoritarianism or at least a weakening of democracy. That hypothesis is tested by an examination of issues involving expression and their treatment in countries included on The Economist's list of fully functioning democracies. Generally speaking, other countries allow prohibitions on hate speech, limits on third-party spending on elections, and the protection of children from media influences seen as harmful. Many ban Holocaust denial and the desecration of national symbols. Yet, these other countries all remain democratic, and most of those considered rank more highly than the United States on the democracy index. This book argues that while there may be other cultural values that call for more expansive protection of expression, that protection need not reach the level present in the United States in order to protect the democratic nature of a country."

“Besides being protected by the First Amendment, the right of students and faculty to express different ideas and opinions—even discomfiting ideas and opinions—is central to the academic mission of schools, colleges, and universities. Two familiar arguments articulated by John Stuart Mill underscore this point: First, the dynamic clash of contrary ideas offers the best prospect we have of arriving at the “whole truth” about any complex subject. Second, unless it is subject to periodic questioning and critique, any established and received bit of wisdom “will be held in the manner of a prejudice with little comprehension or feeling of its rational grounds.” These arguments notwithstanding, heated debates persist as to the proper bounds of free speech in educational institutions dedicated to open inquiry and the examination of multiple viewpoints. Two distinct positions provide us with a useful framework for analyzing many of these debates. The libertarian position rejects regulation of campus speech—except in extreme cases of speech that invade the rights of individuals or small specific groups of people—while instead championing a maximally free marketplace of ideas. The liberal democratic position, however, proposes that, in the interest of scholarly objectivity and rational autonomy, verbal interaction that denigrates or stigmatizes others on account of ascriptive characteristics such as gender, race, ethnicity, religion, or sexual orientation should be constrained in higher education. Adherents to the libertarian position oppose the implementation of campus hate speech codes on the grounds that such codes violate First Amendment principles and are not an effective bulwark against prejudice, discrimination, and inequality. Adherents to the liberal democratic position support narrowly tailored speech codes that formally sanction slurs, “fighting words,” and the like, but they generally believe that most of the work of regulating abusive speech should occur through the informal enforcement of new “norms of civility” on campus. Although these two positions constitute a major fault line in debates over campus speech, they do not capture the range of standpoints taken by participants in the debates. To cite one noteworthy example, some scholars, in the name of what they refer to as “an affirmative action pedagogy,” call for broader restrictions on speech (particularly classroom speech) than either the libertarian or liberal democratic positions endorse.”

“While autonomy arguments provide a compelling foundation for free speech, they also support individual privacy rights. Considering how speech and privacy may be justified, the article argues that the speech necessary for self-government does not need to include details that would violate privacy rights. Additionally, it argues that if viewed as a kind of intangible property right, informational privacy should limit speech and expression in a range of cases. In a world where we have an overabundance of content to consume, much of which could be called “information pollution,” and where there are numerous platforms to broadcast one’s expressions, it is increasingly difficult to maintain that speech should trump privacy.”

The report “provides a new perspective on the social and political dynamics behind the threats to expression. It develops a conceptual framework on the ‘ecology of freedom of expression’ for discussing the broad context of policy and practice that should be taken into consideration in discussions of this issue.”