Theoretical Foundations

“The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.”

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. In this video Dr. Agnes Callamard interviews Lee C. Bollinger, First Amendment scholar, and president of Columbia University.  President Bollinger explains his work 'The Tolerant Societ'y where he argues that free speech establishes tolerance.

In this highlight from an episode of the Origins Podcast, Lawrence Krauss discusses current attitudes about free speech and expression with Noam Chomsky. The discussion spans the themes of free speech on campuses, Donald Trump’s Executive Order, the divide between and the perceptions of the right and the left, the fear of ideas/discussions which produce discomfort, the First Amendment, and, sovereign immunity.  

This book mounts a criticism of the Millian defense of freedom of expression and the underlying harm principle and provides for an alternate paradigm in the “offense principle”. Discussions are based around US First Amendment precedent.

Mill argues for limited governmental intervention in silencing or compelling speech, emphasizes the value of contrary and minority opinions and presents a principle on which any governmental action in respect of speech should be based.

In the first segment of the MOOC 'International and African Legal Framework on Freedom of Expression, Access to Information and the Safety of Journalists' developed by the Centre for Human Rights, University of Pretoria with the support of UNESCO, professor Frans Viljoen gives a general introduction to Human Rights. Viljoen explains the different State obligations, the international sources from which these obligations are derived, and the monitoring mechanisms available in the universal system and in the Africa system in particular. Finally, Viljoen explains the link between freedom of expression and democracy.

This segment is part of Module 1 of the MOOC: General Introduction to the International and Regional Framework on Freedom of Expression

“In the present report, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, focuses on the freedom of opinion and expression aspects of academic freedom, highlighting the special role played by academics and academic institutions in democratic society and noting that, without academic freedom, societies lose one of the essential elements of democratic self-governance: the capacity for self-reflection, for knowledge generation and for a constant search for improvements of people’s lives and social conditions. The Special Rapporteur finds that threats to and restrictions on academic freedom limit the sharing of information and knowledge, an integral component of the right to freedom of expression. He reveals that academics and their institutions face social harassment and State repression for their research, the questions that they pursue, the points that they raise and the methodologies that they bring to bear on public policy – or simply for the stature that their academic work has given them in society. While he focuses on the ways in which the freedom of opinion and expression protects and promotes academic freedom, the Special Rapporteur also recognizes that there is no single, exclusive international human rights framework for the subject. He emphasizes one set of protections for academic freedom, while recognizing and reaffirming others. He concludes with a set of recommendations to States, academic institutions, international organizations and civil society.”

In this segment of the MOOC 'Freedom of Expression in the Age of Globalization' created by Columbia Global Freedom of Expression, Agnès Callamard interviews Lee Bollinger, First Amendment scholar, and president of Columbia University on the US Presidential Race (2016) and the Social Cost of Tolerance

“Many would argue that these are the fundamental goals of a good education. So why has Cambridge University taken to warning its students that the sexual violence in Titus Andronicus might be traumatic for them? Why are other universities in America and increasingly in Britain introducing measures to protect students from speech and texts they might find harmful? Safe spaces, trigger warnings and no-platforming are now campus buzzwords – and they’re all designed to limit free speech and the exchange of ideas. As celebrated social psychologist Jonathan Haidt argues in his book ‘The Coddling of the American Mind’, university students are increasingly retreating from ideas they fear may damage their mental health, and presenting themselves as fragile and in need of protection from any viewpoint that might make them feel unsafe. The culture of safety, as Haidt calls it, may be well intentioned, but it is hampering the development of young people and leaving them unprepared for adult life, with devastating consequences for them, for the companies that will soon hire them, and for society at large. That, Haidt’s critics argue, is an infuriating misinterpretation of initiatives designed to help students. Far from wanting to shut down free speech and debate, what really concerns the advocates of these new measures is the equal right to speech in a public forum where the voices of the historically marginalized are given the same weight as those of more privileged groups. Warnings to students that what they’re about to read or hear might be disturbing are not an attempt to censor classic literature, but a call for consideration and sensitivity. Safe spaces aren’t cotton-wool wrapped echo chambers, but places where minority groups and people who have suffered trauma can share their experiences without fear of hostility. In November 2018, Haidt came to the Intelligence Squared stage to discuss and debate these ideas. Joining him were the former chief rabbi Jonathan Sacks, who believes that educating young people through debate and argument helps foster robustness, author and activist Eleanor Penny, and sociologist Kehinde Andrews, one of the UK’s leading thinkers on race and the history of racism.”