Nowadays, a lot of speech is spent on why it is very very necessary to abridge the freedom of speech. In their efforts to control communication, the “abridgers” face the problem that they must overcome the fact that in what is called “the free world”, the freedom of speech is held to be a fundamental human right that is enshrined as such in various Constitutions, Declarations, Conventions and Charters. In the United States of America, “abridgers” of various sorts are particularly bothered by the fact that since 1789 its Constitution contains a simple and unequivocally worded declaratory and restrictive clause which provides that Congress, its legislative body, “shall make no law … abridging the freedom of speech, or of the press”.
Ulysses Pact
If “no” means what it means and not something else, and if the Constitution is still deemed worthy of respect, the USA is a country where, under no circumstance, “makers of laws” may interfere with speech that is uttered or received, no matter how seditious, offensive, “hateful”, “dis-“ or “mis-informative” that speech might be. Since the legislators themselves agreed with and enacted this restrictive clause, it can be characterized as a genuine Ulysses Pact by way of which the representatives of the “body politic” bound themselves to the mast of the Ship of State when it sails the “waters” of speech. While this may be so, this doesn’t mean that “abridgers”, don’t have unlawful ways and means to silence opponents, but, that’s another story.
Freedom of speech in the EU ?
In 2012, the European Union’s Parliament, Council and Commission “solemly proclaimed” in a Charter of Fundamental Rights that “everyone has the right to freedom of expression” and that “this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” In addition to this, the Charter provides that “the freedom and pluralism of the media shall be respected.” Do these lofty words mean that the EU’s legislative body shall make no law interfering with this fundamental right? Not unexpectedly, the answer is: no. At the end of the Charter’s Preamble, its authors also proclaimed that the “enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.” The Charter itself does not explicate this point. Instead, it simply refers to a “meaning and scope” provision that was laid down in a similar Convention for the Protection of Human Rights and Fundamental Freedoms and that strictly regulates the enjoyment of the right to freedom of expression.
“Meaning and scope” …?
In that Convention, which was enacted in 1950 by the Members of the Council of Europe, the exercise of the freedom to hold opinions and to receive and impart information and ideas, “since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” (emphasis added)
Right or Entitlement ?
So, when it comes to the freedom of speech, in the USA, the legislative body placed a total and absolute restraint on itself not to abridge it, irrespective of everyone’s “duties and responsibilities” carried with its exercise. In the EU, the makers of laws made the exercise of the freedom of expression contingent on everyone’s “duties and responsibilities” in a number of enumerated domains of private and public life. By leaving these “duties and responsibilities” undefined in the Charter as well as in the Convention, the EU’s legislators opened the door to prescribe by law what they mean by everyone’s duties and responsibilities in what comes down to practically every relevant sphere of life. In other words, in the USA, the freedom of speech is regarded as a politically untouchable freedom that forms part and parcel of the unalienable God-given right called Liberty. In the EU, on the other hand, the “right” to the “freedom” of expression was turned into an entitlement which, although it is defined as “fundamental”, can be taken away, abridged or gauged by law that is formulated on the basis of the prevalent ideas and opinions of the sitting legislature concerning what is and what isn’t a desirable outcome when “everyone” exercises the entitlement.
Where do Human Rights come from … ?
Other than referring in its Charter on Human Rights to the EU’s “spiritual and moral heritage”, the Union remains silent about the origin of Human Rights and Fundamental Freedoms. In its Convention, the EU Council referred to the United Nations’ Universal Declaration of Human Rights as the source of human rights. Yet, in that Declaration, there’s not a word about the origin of Human Rights. All that we can learn from the Declaration is that these rights exist and that the “… recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Other than this, the Universal Declaration provides that “all human beings are born free and equal in dignity and rights.” Somehow, our rights and our freedom are “inherent” in all members of the “human family”. Most likely because they’re defined as … “human”.
… they come from the Creator of Man !
In the USA, the origin of Man’s unalienable rights is clearly worded in its seminal Founding Document, the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Moreover, when it comes to defining the role that Government must play in defending these rights, the Declaration provides that Governments are instituted among Men for the very purpose of securing these rights. This clarifies why the American Constitution contains the restrictive clause that no law shall be made abridging the freedom of speech that is embedded in the right called Liberty. What Government must do on behalf of the governed is secure their freedom of speech, even when, in the case of seditious or rebellious speech, this would be to its own detriment.
The origin of unalienable rights is transcendental
Freedom of speech and all the other unalienable rights and fundamental freedoms can only survive in a world that recognizes, acknowledges, affirms and declares that their origin is transcendental. It doesn’t really matter what other name is given or what “identity” is attributed to what the Founders described as the “Creator of Man”. The point is that Man’s unalienable rights, although they are inherent in Man, are not “Man-made”. They did not somehow come into being or arise “in the world”. Besides this, Man isn’t free because he was born free and equal”, but because he was created free and equal.
Free speech and democratic health
Activist “abridgers” never stop finding, creating, seeking, inventing and conjuring arguments and reasons why free speech must be constrained and why Governments must control communication. In this whirl of anti-free-speech speech, defenders of the freedom of speech are inclined to formulate the value of this unalienable right in terms of its utility for society, more in particular for democracy. In The Left’s Reversal on Free Speech, an article published on the 18th of November 2024 on Liberty Fund’s Law and Liberty website, Professor of Law Patrick M. Garry, ([i]) proffers that free speech is “a necessary condition for the attainment of truth” and, in that regard, that it is also the preferred way for a “society to discover the truth necessary to govern itself as a democracy”. According to Garry, “Americans have always believed that free speech and democratic health are intimately connected. As Supreme Court’s Justice Holmes argued [in the Abrams v. United States case], one cannot value speech if one does not value democracy. And if one does not value democracy, one will never protect free speech.” Moreover, so Garry, the “worth and staying power” of free speech depend upon its “ability to gain approval in the social marketplace of ideas”. ([ii])
Power replaces truth
It’s curious that, when it comes to defining free speech in terms of its democratic utility, the European law-makers reached the opposite conclusion. They feel that everyone’s unrestrained exercise of the freedom of expression is unuseful because it may threaten democracy rather than enhance it, wherefore it “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. Apparently, free speech as the “necessary condition for the attainment of truth” that is necessary for a society to “govern itself as a democracy” is a condition that is to be feared in a “democracy” that, instead of letting it govern itself, is governed by a clique of unelected law-makers who prefer power over truth.
When truth is self-evident
Utility arguments are unhelpful and even counterproductive when it comes to establishing the “worth and staying power” of free speech because in an exchange of arguments between defenders and “abridgers” in “the social marketplace of ideas”, the latter will categorically refuse to allow this freedom its “ability to gain approval”. The signatories to the Declaration of Independence held that the worth and staying power of free speech is to be found in the self-evidency of the truth that all Men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. Axiomatic truths like this don’t require “proof” to establish their eternal “staying power”. They don’t require the help of utility arguments. Their power doesn’t stem from their “ability to gain approval in the social marketplace of ideas”, but from their intrinsic self-evidency. The Founders didn’t conclude that free speech is a condition that is necessary to “attain truth”. They never considered that the truths enshrined in the Declaration of Independence were the result of free speech. They held that, being self-evident, these truths inherently entail free speech as an endowment made to Man by his Creator.
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[i] Patrick M. Garry is Professor of Law at the University of South Dakota School of Law and a Senior Fellow at The Center for Religion, Culture, and Democracy. He is the author, most recently, of Limited Government and the Bill of Rights and has published widely on the First Amendment.
[ii] The Left’s Reversal on Free Speech; Patrick M. Garry, Liberty Fund / Law and Liberty website; 18 November 2024. https://lawliberty.org/the-lefts-reversal-on-free-speech/
