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Home exam:

Freedom of expression discourses, principles and practices

(JOUR4330) Start: Nov 8th at 10:00 am. Deadline: Nov 11th at 2:00 pm.

University of Oslo, Autumn 2010

Title:

There shall be freedom of expression, BUT

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There shall be freedom of expression, BUT

A discussion about the arguments for limiting the right to freedom of expression (examination question no. II)

On October 14 2010, in one of Ho Chi Minhs hundreds of hot and crowded cyber cafs, a young Vietnamese women presses publish and a satirical story and several cartoons are displayed on her computer screen. The woman, Le Nguyen Huong Tra, is well known in the Vietnamese blogosphere as a writer about sensitive political issues with humor (though by the pseudonym and blog name of Co Gai Do Long). The satirical story of that day is about the womanizing drug user Nguyen Khanh Toan, son of the Deputy Minister of Public Security. Huong also reproduced a letter from an official criticizing the Deputy Minister for giving his son a job at the ministry. The letter alleged that Khanh had a drug addiction. 9 days later, Huong is arrested. The indictment reads: posting inaccurate information, defaming a senior Communist Party official and his family and violating national security (Reporters Without Borders; Vnexpress.com). If convicted, Huong could be facing up to seven years in prison There is a reason why I start this paper with a story from Vietnam. Huongs story illustrates some relevant points that I find highly interesting points that are easily forgotten in discussions about freedom of expression. First of all, the story reminds us that opinions not always are communicated directly through newspapers, radio and television. They are often especially in countries like Vietnam where the media is strictly controlled presented in novels, poems, films, cartoons and lyrics. Opinions may also be expressed symbolically by acts such as burning flags, hunger strikes, or as many anti-Vietnam War protestors did; burning a draft card (Warburton 2009:3). Secondly, Huongs story reveals how the same kind of arguments and limits as we have in Norway, such national security and defamation, are used or rather misused to curtail inaccurate information. This brings me over to the third, and last point. Vietnams prosecutions of journalists, independent bloggers and critics of the government are always met with harsh criticism from large parts of the international community. The critics refer to human rights declarations, argue that such thoughts are common, but are often met with conflicting arguments and values from

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governments with Asian values and family-oriented cultures (Clapham 2007:5). This can be refuted. It is at least debatable. Nonetheless, the idea that it exist individual human rights is a modern Western invention, and the philosophical basis is in the so-called natural laws from the period of Enlightenment (Emberland 2006:13; Lindholm 2008:2). This reminds us about an important fact. A problematic aspect by the UN Declaration of Human Rights is that it doesnt apply as law, nor is the institutions that are supposed to ensure that it is complied, significantly strong (ibid). Fortunately for Europe though, the European Council has created a Human Rights Declaration that applies as law, but only in member countries. Thus the normal situation for most people of the world today, is far from our Norwegian reality. My main reason for telling Huongs story though, is the fact that it touches upon some of the main areas of conflict concerning freedom of free speech of today namely public morality, civic coexistence and national security. The story is therefore a good backdrop for the purpose of this paper: to discuss arguments for limiting the right to freedom of expression. But before I can embark into the universe of free speech and its limits, some definitions and further explanations must be in place.

Further explanations
Throughout this paper I will use free speech in a broad way to cover not only the strict meaning of the speech the spoken word but as a wide range of expressions, including the written word, plays, films, videos, photographs, cartoons, paintings and so on. Thus, freedom of expression is without doubt a comprehensive concept and it can be difficult to distinguish one notion from another. Therefore, I often picture freedom of expression as a cake or a pie chart. Restrictions and limits on free speech are like big slices cut out of that cake. Before I can start to discuss these slices of pie, I find it necessary to define the cake. What is at the core of the right to freedom of expression, and why? I will therefore start the paper by defining freedom of expression and the main arguments behind. Next I will draw up some of the main arguments for limiting this freedom, before extracting some of them and dig further into these in a more thorough discussion. Since freedom of expression is an individual right, I will try to use personal experiences to highlight my points of view. I think it is easier if not highly necessary with personal experiences to really feel the value of the freedom of expression. Even though my main point of departure is the

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situation and the debate in my own country, Norway, I will occasionally take a big leap over to the Vietnamese reality. Vietnam is in so many ways a country far from our Norwegian reality. It is a country where I have really felt the value and limits! of free speech, after several long periods as a resident both as a journalist and as a trainee at the Norwegian Embassy in Hanoi. Ive witnessed the banning and closure of Facebook and other sites that 'does not exist'. I have also been frustrated over priorcensorship of BBC News and torn-out pages in international magazines. More importantly though, I have seen a great number of Vietnamese men and women prosecuted and convicted supposedly for violating public security and trying to overthrow the Vietnamese Communist Party. Houngs story is not unique. Since I left Vietnam in late July this summer, at least a dozen more have been imprisoned. Huongs story though, is first and foremost meant as a backdrop. I will not actively use or refer to her situation throughout the paper, but when I find it relevant I will illustrate my arguments by referring to her case. The fact that most people in the world do not share the Norwegian degree of free speech, is important to bear in mind when we are moving unto our Norwegian limits of the right to freedom of expression. It does not imply however, that our limits here in Norway are unimportant or out of sight. It is quite the opposite actually.

Why should there be freedom of expression?

Article 19 of the United Nations Declaration of Human Rights and the Norwegian Constitution both explicitly recognize the need to protect free speech. This indicates freedom of expressions fundamental importance, but it is also an acknowledgement of how fragile this freedom can be if it is not protected, even in the most liberal democracies (Warburton 2009:2). But, why? Why should there be freedom of expression? In both article 19 of the United Nations Declaration of Human Rights and in Norwegian Constitution, the search for truth, democracy and the individuals formation of opinion (autonomy) are some of the main arguments. In the Norwegian Constitution 100, the arguments are given in the law text itself. To put it in simple terms, the idea is that a persons, who enjoy the right to speak their mind freely, will learn to respect the opinions of other people, to correct their own opinions and thus be able to take active part in society in a constructive and enlightened manner

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(NOU,1999:27). From what I understand then, any limitation on the freedom of expression must be tested against these arguments. Even though freedom of expression is crucial to public insight and general discussions of issues of common interest, is it easy to be persuaded by the rhetoric of free expression that all curbs on this freedom are morally objectionable, which they arent. Sometimes we do need to give greater weight to other considerations, to rank other values higher (Warburton 2009:98).

Freedom of expressionBUT
In all countries even under the most liberal system of government there are legal restrictions on freedom of expression. It is thus a general agreement that the right to free speech must have certain limitations (Warburton 2009: 99; Brurs 2005: 20). There are other values and interests of both individuals and the public that can only be ensured by setting certain limits to freedom of expression. The Norwegian legislation contains a number of limits on freedom of expression. Only from the Penal Code, the following keywords can be mentioned: national security, libels, privacy, discrimination, violence and pornography, blasphemy, prohibition of anonymous publications (the editor must be named), and so on (Lovdata.no). Other limitations worth mentioning are: the freedom of expression of employees, marketing, freedom of the press, copyright, monopoly and ownership. Many of these laws can without doubt be justified, and they are probably well intended out of socalled good intentions. Out of this emerges a problem though, and I find it highly necessary to ask: Is the 'exceptions' from the freedom of speech in the process of becoming so extensive that they eventually overwhelm the general rule? Is it too easy to overlook the principle of freedom of expression as soon as it arises other needs and considerations that must be fulfilled? What are the justifications that can be offered for the various limitations?

The main areas of conflict

The current limitations to the freedom of speech are many and diverse, but they are usually classified under three main headings, namely: (1) public morality (especially as regards pornography), (2) civic coexistence (incitement to committing crimes, hate speech, racial and religious discrimination,) and (3) national security (Zeno-

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Zencovich 2008:80). They all have peculiarities that merit closer attention, but I neither have the time nor space to discuss them all. I will therefore focus on civic coexistence the various limitations concerning personal protection in addition to a quick glance at limits concerning national security. This is a deliberate choice. I would argue that these areas of conflict represent some of the most difficult, controversial and not the least admissible and relevant topics of today. And as noted earlier, they are at the core of Huongs story.

The boundaries of good intentions

In Norway it is often stated that it originally was the protection of authority that was the greatest obstacle to freedom of expression, but with a gradual weakening of state protection a certain tendency towards a strengthening of personal protection can be observed (NOU,1999:27). Currently, personal protection, particularly protection of honor and dignity, is a major restriction of freedom of expression (ibid:58). This is highly relevant in Vietnam as well. Huong is not the first one to be arrested. Actually, defamation of Party officials, propaganda against the State, and violations of national security, are the most frequently used indictments and sentences in these kind of cases (Hayton 2010:140). Other topics under the umbrella of personal protection, are defamation, hate speech, discrimination, insults and to a certain point blasphemy. Unfortunately, I cannot go further into each and every one of these. I will rather try to penetrate these various personal protection topics and discuss the arguments behind these restrictions and limits to the right to free speech. As stated earlier, many of these laws can without doubt be justified. I collectively call them: the boundaries of good intentions. It therefore is easy to nod along with these kinds of arguments for limiting the freedom of expression. Everyone should have a right to privacy, and to be protected from hate speeches, and discrimination, and honor and dignity, and defamation, blasphemy and insults. The good intentions are many, and they are frequently gaining ground. Where do we draw the line? Take for example the very first one, the right to privacy. Both the Right to Privacy and Freedom of Expression are guaranteed by the European Convention on Human Rights. Article 8 of the Convention guarantees everyone the right to respect for his private and family life, his home and his correspondence. Article 10 provides

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for freedom of expression with an emphasis on the essential functions the press fulfills in a democratic society (Jrgensen 2009:67). Clearly, both the right to privacy and freedom of expression are vital democratic values, but they often have to be weighed against each other. But even though the respect for the right to privacy and respect for the freedom of expression often conflict, they are also mutually dependent. Protection of the right to privacy has a clear social value in that people need personal space in which to develop the personal integrity needed to become active citizens who make use of their freedom of expression. In addition, freedom of expression makes it possible for people to defend themselves, whether in their public or private life (Jrgensen 2009:76). The same thing can be said about defamation, hate speech, discrimination, and so on. Many of these restrictions to free speech, can easily be justified. They are and should be restricted by law. However, even tough well intended, we cannot and should not uncritically nod along to such limits to the right to freedom of expression. Under no circumstances can personal protection be absolute (Zeno-Zencovich 2008:84). Too stringent rules will without doubt have a dampening effect on what individuals can and dare say, thus disrupting and reducing openness and public discourse (NOU,1999:27). We have to distinguish though, between public and private persons, and the public and the private arena. Everyone has the right to privacy even public figures. When regarding public persons on the public arena, the personal protection barriers must be especially low. Insults are a natural part of any political debates, and not the least news about politics and politicians, at least in Norway. In Houngs case the information she revealed was supposedly too strong for the Party officials to handle. The freedom to criticize though, is a fundamental precondition for the open society and a precondition for the entire emancipation project that has freedom of expression as its point of departure and precondition (NOU,1999:27). I think this is particularly important not only for political issues, but also in matters of faith and religion. Both secular and religious believers are trying to raise their own viewpoints by making them sacred. The new transnational dimension further complicates this. In a world where insults are globalized as easily as e-mails, many important debates will take place in the private sphere or go underground, if we cannot run the risk of offending someone. Under such a regime, the public sphere will end up being empty (Eriksen 2007:192). In a healthy society with a public that plays a controlling, corrective and decent-7-

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making role, there must be a limit to which limitations that is necessary. However, although one assumes that most of the public exchange de facto regulates itself, as indeed it should, there are nonetheless good reasons for certain additional legal regulation (NOU,1999:27). Utterances about private persons require a different set of rules, but the protection cannot be absolute (Zeno-Zencovich 2008:84). A relevant fact though often forgotten in this context, is the fact that the freedom to express oneself in the public space, can lead to ventilation, cleansing and decency of opinions through discourse and criticism. For the public to function in this manner though, discriminatory attitudes need to be expressed. For it is only after they have been expressed that they can be fought through public criticism (NOU,1999:27). In principle then, one can say that the freedom of expression may function as a protection against e.g. discrimination.

National security, or security of the state?

Freedom of expression is in a number of connections restricted in the interest of national security. The term national security must be kept distinct from state security though. It is not the state as an executive body or body corporate pursuant to national law, that primarily shall be protected, but the nation itself or the realm with its territory and constitution (NOU,1999:27). The arguments for limiting the freedom of expression on this arena, is not too hard to swallow. They carry with them a fundamental feeling we detest to recognize: fear. The concept can be divided into external and internal since threats against security may originate either abroad (typically revolutionary military threats from foreign states) or at home. The latter is typically revolutionary groups that wish to amend the Constitution unlawfully (NOU,1999:27). At first glance, the latter argument does not seem too urgent at least not here in Norway. The former is more easily to justify though. Norway is at war in Afghanistan and external threats to national security shouldnt be underestimated. However, upon closer examination arguments for limiting the freedom of expression in the interest of national security are not that easy to digest. National security generally concern the disclosure of information classified as secrets and thus would appear not to directly affect expressions of ideas (Zeno-Zencovich 2008: 86). However, the distinction is not so clear-cut in practice: information is a prerequisite for criticism of the state and its

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policies and these can only be evaluated on the basis of that information withheld as secret. The recent disclosures made available by WikiLeaks1 serves as a good example in this respect. It can thus reasonably be asserted that a principal and direct effect of the classification of information is to reduce the scope for critical debate one the activities of the state (ibid). This brings another dimension of the freedom of expression into the discussion; the right to receive and obtain information. We, the ordinary people, who are the rightful owners of the freedom of expression, should remember this; that freedom of expression also includes a right to acquire knowledge.

Debate rather than prohibitions

As I have shown in this paper, the many limitations against the right to freedom of expression are various and diverse. I have argued for both sides, as they are often mutually dependent. An important part though, is that expressions have to be weighed against the core of the right to freedom of expression, namely truth, democracy and autonomy. This means that certain categories of expression receive varying degrees of protection as it should. Political speech is at the core of the protected area, as it is of public interest, while obscene and defamatory expressions are at the outer edge. Almost never, however, can personal protection be absolute. A line must be drawn though. John Stuart Mill the most celebrated contributor to debates about the limits to individual freedom sat the boundary at the point where speech or writing was an incitement to violence (Warburton 2009: 9). This is indisputable. I have devoted closest attention to the legal restrictions to freedom of speech in this paper. However, there is a moral side to this as well. When we are discussing freedom of expression, it is important to distinguish between law and ethics. As shown, freedom of expression is enshrined in our legislation. The law sets the outer limit of our behavior. The law gives the government authority to use force, and is administered by the court (at least in Norway). But this system is very comprehensive, and in the daily life we cannot act as if we run the risk of prosecution every day. The everyday life does not (for good reasons) take place on the statutory border, but in the field of ethics. Here our actions are governed by moral rules. Everything that is legal
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WikiLeaks is an international organization that publishes submissions of otherwise unavailable documents from anonymous sources and leaks. WikiLeaks has for instant released the so-called Afgan War Diary, a compilation of more than 76,900 documents about the War in Afghanistan not previously available for public review. In October 2010 the group released a package of almost 400,000 documents called the Iraq War Logs.

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is not necessarily good behavior. Nor is it wise to require that law should prohibit bad, immoral or childish behavior. This illustrates that the substantive freedom of speech always is limited either by the Penal Code and/or special laws that bans statements out of various good causes, or by ethical and moral barriers. The limits are a result of specific adjustments between conflicting objectives, and it should always be political disputes about where those boundaries should be drawn. Those who offend someone cannot expect blessing from their opponent. But they shouldnt be afraid of getting killed either. My intention by setting our Norwegian reality up to Huong and Vietnams was to illustrate how we both are at the outer edge. While we here discuss whether the freedom to expression has gone too far, and where the outer lines should be drawn, hundreds of free speech activists, journalist and bloggers are elsewhere in prison. While we here in Norway have a relatively large freedom of expression cake a cake we often take for granted Vietnam has nothing but crumbs. Regarding Huong's story, her condition is currently unknown. For all I know, she might be prosecuted and convicted already. Accessing information is almost impossible. Vietnamese courtrooms are closed for the international community as for the average Vietnamese man and woman. Compared to our Norwegian quite large freedom of expression cake then, Vietnam has hardly any crumbs. Vietnam is the world's second biggest prison for journalists and bloggers after China and is ranked 165th out of 178 countries in the Press Freedom Index by Reporters Without Borders.

Literature
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Brurs, Svein: Etikk for journalister. Fagbokforlaget,.Bergen, 2005

Emberland, Marius: Retorikk og realiteter. Norsk menneskerettighetsdebatt p et sidespor? Civita. Oslo, 2006.

Eriksen, Thomas Hylland: Ytringsfrihet og globalisering, in Vetlesen, Arne Johan and Thomas Hylland Eriksen (ed.): FRIHET. Universitetsforlaget. Oslo, 2007.

Hayton, Bill: Vietnam. Rising Dragon. Yale University Press, 2010.

Jrgensen, Oluf: The Right to Privacy and Public Figures. On the Limits to Freedom of Expresson, in Kierulf, Anine and Helge Rnning (ed.): Freedom of Expression Abridged. Nordicom. Gothenburg, 2009

Kierulf, Anine and Helge Rnning (ed.): Freedom of Expression Abridged.. Nordicom. Gothenburg, 2009

Lindholm, Magne: Lynkurs i ytringsfrihet. Handout on the lecture Lynkurs i ytringsfrihet at The University College of Oslo, 07.10. 2008.

Lovdata.no: Various laws from: http://www.lovdata.no/cgi-wift/wiftloksok? sys=1&felt=titt&emne=straffeloven&button=S%F8k&PROS=02 [read: 10.11.2010]

NOU 1999:27: There Shall be Freedom of Expression. The Report of The Norwegian Freedom of Expression Commission, 2004.

Reporters Without Borders: ALERT: Popular woman blogger arrested over blog entry about senior party official: http://www.ifex.org/vietnam/2010/10/27/tra_blogger_arrested/ [read: 08.11.2010]

Vnexpress.com: Vietnam arrests two bloggers over past week: http://www.wtop.com/?nid=385&sid=2093336 [read:09.11.2010]

Warburton, Nigel: Free Speech. A Very Short Introduction. Oxford University Press. New York, 2009. - 11 -

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Zen-Zencovich, Vincento: Freedom of Expression. A Critical and Comparative Analysis. Routledge. New York, 2008

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