| Chapter 1: | The Nature of Speech and Freedom of Speech |
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US Supreme Court Justice Oliver Wendell Holmes once observed that free speech does not give the right to yell “fire” in a crowded theatre.19 Similarly, most free speech advocates would not be heard to advocate that a computer hacker should be free to publish missile launch codes that activate nuclear weapons systems or that someone should be free to change speed limit signs on motorways. Yet all of these activities clearly involve speech or expression of some sort. In the context of defamation law, unlimited free speech would give the right to defame or injure someone’s reputation with legal impunity. From the viewpoint of privacy, unrestricted speech would allow publication of an individual’s bank records or medical history. Under all common law legal systems, there are limitations on the right to defame or invade privacy with impunity. Free speech is therefore the realm of speech that is not limited or restrained by another body of law.
A starting place for free speech is perhaps Article 19 of the Universal Declaration of Human Rights (Universal Declaration), adopted by the United Nations General Assembly in 1948 that, in very broad terms, acknowledges that freedom of expression is a basic human right:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
However, having established this universal right in Article 19, then there is the limitation in Article 29 (2):
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Freedom of expression, even if a universal right, is certainly something less than an absolute if it is subject to requirements of respect for the rights