Freedom of Expression as a Human Right
University of San Diego School of Law
U of San Diego Public Law Research Paper No. 23
In this paper I shall focus on a right that, along with the right against arbitrary arrest and punishment, the right to a fair trial, the right not to be tortured or inhumanely punished, and the right of freedom of religious belief, has perhaps the strongest claim for being a core human right, namely, the right of freedom of expression.
But is there a right of freedom of expression? It is surely widely thought so. However, the grounds, scope, and force of such a right are vigorously contested. What activities does it apply to? (Does it protect specific activities, such as writing and speaking? Or does it protect any activity intended to communicate an idea? Alternatively, does it protect the receipt or formation of ideas from whatever source? Or is its focus neither the communication nor the receipt of ideas but rather the reasons behind those acts that are said to violate the right?) Whom does freedom of expression restrict (only government, or large private entities, or everyone)? Does it have an affirmative aspect to it, requiring government or others to expend resources to further it and protect it? And what institutional mechanisms are consistent with it? For example, if freedom of expression requires that government not preempt others' assessments of the importance of speech, then there cannot be a governmentally-enforced (judicially-enforced) free speech right that turns on assessments of the importance of speech.
Finally, does freedom of expression have a secure philosophical underpinning? Or does it, like freedom of religion, ultimately rest on the philosophically dubious idea of "epistemic abstinence"? If so, is it possible nonetheless to identify a core set of acts that can form the basis of a principled and administrable human right of freedom of expression.
Number of Pages in PDF File: 91
Date posted: October 2, 2001