Theoretical Foundations

Theoretical Foundations

Drawing on the work of thinkers from various political, cultural and religious traditions, the Module provides resources that explore why freedom of expression and information matters. It distinguishes between the main theories underpinning the protection of free speech and the rejection of censorship, and links these philosophical arguments to more recent international political developments.

10 items found, showing 1 - 10

Democracy and Development

Author: IACmHR
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In October 2000, following debates among different civil society organizations, and in support of the Office of the Special Rapporteur for Freedom of Expression, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression. The Declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. In light of the importance of these principles, the Commission also published an interpretation of the principles set forth in the Declaration.

OAS, IACmHR. Background and Interpretation of the Declaration of Principles. 108th regular period of sessions. 2-20 October 2000

Author: IACtHR
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“[T]he Government of Costa Rica […] submitted to the Inter-American Court of Human Rights […] an advisory opinion request relating to the interpretation of Articles 13 [Freedom of thought and expression] and 29 [Restrictions Regarding Interpretation] of the American Convention on Human Rights […] as they affect the compulsory membership in an association prescribed by law for the practice of journalism […]. The request also sought the Court's interpretation relating to the compatibility of Law No. 4420 of September 22, 1969, Organic Law of the Colegio de Periodistas (Association of Journalists) of Costa Rica […], with the provisions of the aforementioned articles.”

IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism. Advisory Opinion OC-5/85. Series A, No. 5. 13 November 1985

Author: IACmHR
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In October 2000, following extensive debates among different civil society organizations, and in support of the Office of the Special Rapporteur for Freedom of Expression, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression.  The Declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights.

OAS, IACmHR. Declaration of Principles on Freedom of Expression. 108th regular period of sessions. 2-20 October 2000

Author: Columbia Global Freedom of Expression, Agnès Callamard
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In this segment of the MOOC 'Freedom of Expression in the Age of Globalization' created by Columbia Global Freedom of Expression, Agnès Callamard explores why freedom of expression and information matters, and the values and principles that are established through free speech. Specifically this video explores the relation of freedom of expression with Democracy and Development

Author: Amartya Sen
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Author: Kevin W. Saunders
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"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."

Saunders, Kevin W. Free Expression and Democracy: A Comparative Analysis. Cambridge: Cambridge University Press, 2017. doi:10.1017/9781316771129.

Author: Toni M. Massaro and Helen Norton
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“Left unfettered, the 21st-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s 18th--century writers but also to its 20th-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited—by both government and powerful private actors alike—as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes. The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites us to reconsider our answers to key questions and to adjust doctrine and theory to account for these changes. Yet there is a more or less to these re-imagining efforts: they may seek to topple, or instead to tweak, current theory and doctrine. Either route requires that reformers revisit the foundational questions underlying the Free Speech Clause: What, whom and how does it protect—and from whom, from what, and why?”

Massaro, Toni M. and Norton, Helen. “Free Speech and Democracy: A Primer for Twenty-First Century Reformers.” UC Davis Law Review 54 (2021): 1631-1685.

Author: Alexander Meiklejohn
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Discussing the relationship between the right to free speech and democracy.

Author: Jack M. Balkin
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Balkin argues that the conception of free speech which characterized the 20th century is inadequate to protect free speech and expression in the 21st century due to the transition from a dualistic model of speech regulation with two players to a pluralist model of speech regulation with multiple players. In this essay, he frames free speech as operationalizing as a triangle, with States and the European Union at one end, internet-infrastructure companies at another, and different kinds of speakers at the third end. He analyses the three problems which this triangle creates: 1) new-school speech regulation which produces collateral censorship and digital prior restraint, 2) the absence of due process and transparency in the manner in which privatized bureaucracies govern end-users, resulting in abuse and arbitrariness, and 3) the vulnerability of end-users to digital surveillance and manipulation. He discusses the ways in which States should or should not regulate the digital ecosystem in order to align with the values of freedom of speech and proposes reforms which can be implemented by Governments in consonance with the Constitutional guarantees of free speech and the press as long as they are properly-designed. These reforms are: 1) structural regulation with the aims of promoting competition and preventing discrimination by basic internet services and payment systems, 2) guaranteeing curatorial due process, and 3) the treatment of social media companies as information fiduciaries towards their end-users, who are responsible for upholding duties of trustworthiness and good faith.

Balkin, Jack M. “Free Speech is a Triangle.” Columbia Law Review 118, no. 7 (2018): 2011-2056.

Author: Columbia Global Freedom of Expression
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Here you will find the Syllabus for the MOOC 'Freedom of Expression in the Age of Globalization' created by Columbia Global Freedom of Expression. This course will examine the norms, institutions and forces that altogether have founded a global system of protection for freedom of expression and information. The Foundational Course will include four main segments. It will first survey the thinking of 19th century and contemporary political theorists, Judges in the early years of the twentieth century, and economists to discover why freedom of expression and information matters, and the values and principles that are established through free speech. The second will review the emergence of an international system of protection for freedom of expression, including the international and regional institutions and standards, and the role of international courts. The third and fourth class will focus on the scope of freedom of expression and on its legitimate limits. We will provide answer two key questions: What kind of speech is protected under international standards? What kind of speech may be restricted by Governments and how can it be legally restricted?