| Chapter 1: | The Nature of Speech and Freedom of Speech |
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to assemble, and to petition the government for a redress of grievances.
As discussed in chapter 7, the American First Amendment is peculiar because it is not so much a guarantee of freedom of expression as a prohibition of government regulation of speech. In contrast, the Constitution of the state of California is an express, but not unrestricted, grant to the people, more in line with the European Convention and the Canadian Charter, and provides:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.22
While Article 19 of the Universal Declaration establishes freedom of expression as a basic human right, many of the participating nations were and continue to be totalitarian regimes and consequently, Article 19 is considered as being more of an aspiration than reflecting actual recognition by all of the signatory states. However, Article 19 does not explain why everyone should have the right to “freedom of opinion and expression.” While human rights pronouncements state that freedom of expression is essential, they do not persuasively address why these rights are essential. As acknowledged by Article 29 of the Universal Declaration, free speech has always been a limited right. Determining the proper limitation on free speech is still not fully resolved because even within the specific limitation of something as thoroughly hammered out as defamation laws; the balance of interests between freedom of expression and other rights is not static. Questions regarding the legitimate and reasonable limitations on free speech frequently require recourse to the underlying reasons and theories justifying free speech.
For example, while no one would seriously contend that free speech, as a basic human right, entitles a citizen to turn over military secrets to an enemy during wartime as a permissible exercise of free speech, the question becomes far more difficult if free speech rights are curtailed to