Tuesday, 22 June 2021

Speech vs. Speech

Can something that I write in this blog restrict someone else’s freedom of expression?

According to the UK government, yes. In its Full Response to the Online Harms White Paper the government suggested that under the proposed legislation user redress mechanisms to be provided by platforms would enable users to “challenge content that unduly restricts their freedom of expression”.

To anyone brought up on the traditional notion that a fundamental right of freedom of expression exists in order to limit the uniquely coercive power of the state, the proposition that one individual is capable of restricting another individual’s freedom of expression (let alone that they can do so merely by writing and publishing) is a contradiction in terms. Yet presumably the government meant something by it.

Happily, that phrase did not make it into the draft Online Safety Bill. Perhaps someone thought better of it. Nevertheless, it amply illustrates the fog of confusion that arises once we embark on a discussion of freedom of expression. We elide freedom of expression as a desirable value and freedom of expression as a fundamental right. We confuse substantive laws with the surrounding metalaw of fundamental rights. We conflate shields and swords. We employ the same terms to describe protection from state coercion and using state coercion as an instrument.

As a result, discussions of freedom of expression tend to resemble convoys of ships passing in the night. If, by the right of freedom of expression, Alice means that she should be able to speak without fear of being visited with state coercion; Bob means a space in which the state guarantees, by threat of coercion to the owner of the space, that he can speak; Carol contends that in such a space she cannot enjoy a fully realised right of freedom of expression unless the state forcibly excludes Dan’s repugnant views; and Ted says that irrespective of the state, Alice and Bob and Carol and Dan all directly engage each other’s fundamental right of freedom of expression when they speak to each other; then not only will there be little commonality of approach amongst the four, but the fact that they are talking about fundamentally different kinds of rights is liable to be buried beneath the single term, freedom of expression.

If Grace adds that since we should not tolerate those who are intolerant of others’ views the state should – under the banner of upholding freedom of expression – act against intolerant speech, the circle of confusion is complete.

It is difficult to make sense of appeals to freedom of expression as a fundamental right without appreciating the range of different usages and their, to some degree, contradictory underpinnings. When the same label is used to describe a right to be protected against coercive state action, a right whose existence is predicated on coercive state action, and everything in between, the prospects of conducting a debate on common ground are not good.

Prompted by the existence of the Lords Communications and Digital Committee Inquiry into Freedom of Expression Online, this piece aims – without any great expectation of success - to dispel some of the fog.

Freedom of expression as a value Freedom of expression as a value holds that more scope for expression is generally preferable to less. That is a reason for resisting undue restrictions imposed by the state.  It is also a criterion by which the policies of institutions, both private and state, may be evaluated and praised or criticised. Although freedom of expression as a fundamental right is not the same thing as freedom of expression as a value, the existence of the fundamental right reflects the high value that we place on freedom of expression.

However, we also value freedom of choice. An institution that chooses to place restrictions on the speech that it permits within its environs is not automatically to be deprecated. We do not necessarily think less of a meeting venue because, choosing to avoid controversy, it declines to follow the approach of Conway Hall.

That said, maximising the scope for freedom of expression may be thought to be especially desirable in some contexts. Universities, holding themselves out as dedicated to free and fearless academic inquiry and debate, are one example.

If an institution’s policy on speech is criticised as overly restrictive, the implication is that it has had insufficient regard to freedom of expression as a value. Whether that also engages a right of freedom of expression may depend on the version of the right adopted - Alice’s, Bob’s, Carol’s, Ted’s or some other – and, at least for Alice’s version, whether the institution in question forms part of the state. Grace will consider that unfurling the banner of freedom of expression is its own justification for the state to employ coercion.

Alice’s shield against abuse of state power

The classic formulation of freedom of expression as a fundamental right is Alice’s version: a protective shield against abuse of the uniquely coercive power of the state. That is most plainly rendered in the US First Amendment:  “Congress shall make no law…”.

Although the European Convention on Human Rights is more equivocal, its primary concern is also said to be coercion by the state. ECtHR caselaw refers to the “primarily negative undertaking of a State to abstain from interference in the rights guaranteed by the Convention”. To comply with the Convention, an interference with freedom of expression by the state must be prescribed by law and satisfy conditions of necessity and proportionality.

From this perspective the proposition that my writing can restrict your (right of) freedom of expression is startling. My writing is not state action. As such, the proposition is orthogonal to Alice’s notion of a fundamental right. It falls at the first hurdle. We never reach the question of whether – and if so how – speech might of itself be capable of restricting someone’s differently conceptualised right of freedom of expression.

Bob and Carol’s sword of horizontality However, some concepts of fundamental rights are broader than a shield against state coercion. One such is the notion of a positive state obligation. That may require the state to unsheath its sword and take positive steps to ‘secure’ an individual’s fundamental right. In its simplest, bilateral, form a state can be required to take positive steps to protect an individual’s right as against the state itself.

In Europe the theory of positive state obligations has reached its full flowering with the theory of horizontal fundamental rights. This is borrowed from the German constitutional law concept of drittwirkung and has increasingly been adopted by the European Court of Human Rights. In this version the state is obligated not merely to refrain from interfering unjustifiably with someone’s Convention rights, but may positively be obliged to wield the sword of coercive power in order to secure a Convention right as between one private individual and another.

The Strasbourg Court frequently recites that the obligations on the State are not necessarily limited to abstaining from interference with Convention rights, but may “require positive measures of protection, even in the sphere of relations between individuals” (see e.g. Palomo Sanches v Spain 12 September 2011)

The ECHR evolution from shield to sword is well summarised by Monika Florczack-Wątor:

“After World War II, the European Convention on Human Rights was prepared in the belief that the greatest threats to an individual resulted from actions of the State and its authorities. … Several decades of development of the Council of Europe, whose main aim has been to promote the principles of democracy and respect for human rights, have strengthened trust in the State Parties to the Convention associated with this organization. They ceased to be perceived as the main threat to human rights, and the bar started to rise in terms of what was expected of them. With time came the recognition that it was not the State but private parties that posed the biggest threat to individuals’ rights and duties enshrined in the Convention. … Thus, as Andrew Clapham observes, the European Convention on Human Rights replaced the idea of protecting the individual against State measures with the idea of protecting the individual through State measures.” (The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State. International and Comparative Law Review, 2017, vol. 17, no. 2, pp. 39–53.)

The best known example of the Strasbourg Court’s invocation of horizontality is its interpretation of the Article 8 privacy right. The von Hannover decision led to the UK being obliged to develop a new tort of misuse of private information.

Horizontality has been applied – but so far not often - to the Article 10 freedom of expression right. For example, in Herbai v Hungary the Strasbourg Court held that the state had a positive obligation under Article 10 to secure an employee’s right of freedom of expression as against their private sector employer. That right was violated where the state provided no redress when the employer dismissed the employee on account of material that the employee posted on a website.

In principle, horizontality could be deployed to support Bob or Carol’s position. How though, to decide the outcome? Since wielding the sword of horizontality tends to require the state to interfere with the fundamental rights of another person, the human rights court ends up ‘balancing’ the conflicting fundamental rights of the persons involved (or at least the individual’s interests against those of ‘the community as a whole’) in order to decide which should prevail. That exercise, however, is more akin to conducting and resolving a policy debate than deciding a legal question.  

‘Balancing’ is a process that the Strasbourg court often undertakes in freedom of expression cases for a different reason. ECHR Article 10.2 permits an interference with freedom of expression by the state to be justified on the grounds of protection 0f the reputation or rights of others. ‘Rights’, in this context, necessarily has a broader meaning than a right to be protected from state interference. It implies something that the State is entitled to use its coercive power to protect from interference by other persons, even if it is not obliged to do so. Horizontality goes a step further by introducing an obligation on a State to secure such a right.

It is a whole topic in itself how human rights courts go about deciding whether to invoke horizontality in a particular case; and whether when they do so they supplant the role of the legislature by creating substantive law, rather than limiting themselves to the metalaw role of determining whether laws and other measures adopted by states have overstepped civilised boundaries.

Ted’s thicket of competing rights

Once we have ventured into the territory of horizontality and balancing of conflicting rights, it is but a short step to think of fundamental rights in Ted’s terms: enjoyed by individuals as against each other.

As a matter of enforceable rights, however, Ted has taken a step too far. Although, where horizontality is invoked, the court in effect decides where to draw the line between the rights of two private persons, the exercise is still conducted via the medium of the state. Judgments of the Strasbourg court are addressed to Contracting States. They stipulate what domestic laws they must not have or (in the case of positive obligations and horizontality) must have. Strasbourg decisions do not create directly assertable and enforceable rights as between one individual and another.

Nevertheless, Ted’s perspective is almost inevitably adopted as shorthand. Fundamental rights are universally discussed in horizontal terms. As their primary function of protection against the state has assumed comparatively less prominence, fundamental rights have come to resemble a thicket of competing rights, each one demanding that the balance with other conflicting rights be resolved in its favour and secured by the sword of state action.

With each step away from Alice’s basic shield against the excesses of state power towards Ted’s thicket of horizontal rights, fundamental rights become ever more intricately woven into the fabric of society – yet, paradoxically, woven with thinner thread as the content of the various rights asserted becomes ever more contested, subjective and conflicting. Appeals to fundamental rights increasingly come to resemble little more than policy advocacy clothed in the language of rights.

Speech as a restriction on freedom of expression

Returning to the government’s suggestion that users could “challenge content that unduly restricts their freedom of expression”: if it is conceptually possible for a private actor to restrict someone else’s fundamental freedom of expression right, could writing a blog or a social media post qualify? In other words, can speech itself restrict someone else’s fundamental right of freedom of expression? Alice rejects the premise. Bob has no view. Carol says yes. Ted says speech is violence. Dan has no say, since his views are repugnant.

What of Grace? She is busy taking the sword to the village in order to save it.

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