Freedom of expression is a fundamental
or human right
, indicated in the article #19 of the Universal Declaration of Human Rights (1948)
. It derives the freedom of printing
also called freedom of the press.
The right to freedom
of expression is defined as a medium for the free dissemination of ideas.
For philosophers
as Pach, Montesquieu,, , Voltaire
and Rousseau
the possibility of
dissent encourages the advancement of the arts and Sciences and genuine
political participation. He was one of the pillars of the Guerra of the independence of
the United States (First
amendment) and the French
Revolution, facts which ravaged
the courts of the other Western States.Another classic, associated argument to John Stuart
Mill, is that it is essential for the discovery of truth. Oliver Wendell Holmes Jr.
and Louis Brandeis
famous Jurists
Americans, minted the argument of the market of
ideas. According to this analogy with the
free
trade, the truth of an idea is revealed in their ability to compete in the
market.
Human right
In article 19 of the " " Universal Declaration of human
rights ", reads:"everyone has
the right to freedom of opinion and expression;"" "this right includes the of not being
bothered because of their opinions, the to investigate and to impart information
and ideas, and spread them, regardless of frontiers, by any means of
expression."
The " " American Convention on human
rights " or Pact of San José, Costa Rica" 1969, article 13.
Notes:
"Freedom of thought and expression."
1. Everyone has the right to freedom of thought and expression.
This right includes the
freedom to seek, receive and impart information and ideas of all kinds, without
considerations of frontiers, either orally, in writing or in printed form of
art, or by any other procedure of your choice and taste
2. The exercise of the right referred to in the
preceding subparagraph must not be subject to prior censorship, but to further
responsibilities, which must be expressly provided by law and necessary to
ensure:
(a) respect for the rights or reputation of
others, or
(b) the protection of national security, public
order or public health or morals.
3. Not the right of expression may be restricted
by roads or indirect means, such as the abuse of Government or private controls
of newsprint, radio frequencies or belongings and equipment used in the
dissemination of information or by other means intended to prevent communication
and circulation of ideas and opinions.
4 Public performances may be subject by law to
prior censorship with the exclusive object of regulating access to them for the
moral protection of childhood and adolescence, without prejudice to the
provisions of paragraph 2.
"5 Is prohibited by law any propaganda for war
and any advocacy of national, racial or religious hatred constituting
incitements to violence or any other similar illegal action against any person
or group of persons, on any grounds, including those of race, colour, religion
or national origin".
Prohibition of any propaganda for war, is also enshrined in the "
" International Covenant on Civil
and political rights ".
On the other hand,
there are other rights and freedoms (or "rights to freedom of...", example:
right to freedom of Assembly, demonstration, exercise of cults, etc) together
with the right to freedom of expression. Thus the right to freedom of expression is not an absolute and
unlimited right as neither is any other right or freedom. Each right or liberty (right to freedom
of...) has an area of development, and compression, and every person who
exercises a right, must act within that area of development and understanding of
that right. Do more
beyond this scope, is not acting within the law, but outside, with the
possibility of who acts of violation, vejar, or trampling the rights of others,
and is more serious still when it comes of human rights
of persons.
The limit to the human
right of freedom of expression, is given by respect for other human rights of
individuals.
Consistent with this, the "Convention American on
human rights", expresses in article 11:
"Protection of honour and dignity."
1. Everyone has the right to respect for his
honor and recognition of your dignity.
2. No one may be subjected to arbitrary or
abusive interference in his private life, his family, home or correspondence,
nor to unlawful attacks on his honour or reputation.
"3. Anyone is entitled to the protection of the
law against such interference or attacks."
And the art.18 of the Convention sets forth the
"right of correction or reply", says:
"Right of correction or reply."
(1) Every person affected by inaccurate or
offensive information issued in its subject through media legally regulated and
that to go to the public at large is entitled to make rectification or reply in
the conditions established by law by the same organ of diffusion.
2. In no case the correction or reply exempted of
other legal responsibilities that it has incurred.
"3. For the effective protection of honour and reputation, any
publication or company newspaper, film, radio or television you will have a
person responsible who is not protected by immunities or special
privileges."...
Limits of freedom of expression
According to the Organization of the freedom Forum, legal
systems, and society in general, recognize limits on freedom of expression,
particularly when freedom of expression conflicts with other values or rights.
Limitations on the
freedom of expression may follow the "harm principle" or the "offence
principle", for example in the case of pornography or the "hate speech".
Limitations on the
freedom of expression can occur through the legal sanction and/or social
disapproval.
Members of the Westboro Baptist Church them has been specifically prohibited the entrance to Canada by the hate speech.
In "On Liberty" (1859) John Stuart Mill argued that "... There
must be maximum freedom of professing and discussing, as a matter of ethical
conviction, any doctrine, by immoral that you can be considered". Mill argues that greater freedom of
expression is necessary to push the arguments of its logical limits, rather than
the limits of social shame. However, Mill also introduced what is known as the principle of
harm, in the placement of the following limitation on freedom of expression:
"the only purpose for which power can be exercised legitimately through any
member of a civilized community, against his will, is to prevent harm to
others".
In 1985, Joel Feinberg introduced what is known as the
principle of "offense", arguing that the principle of harm from Mill does not
offer sufficient protection against the illicit behaviour of others.
Feinberg, wrote: "it is
always a good reason in support of a criminal prohibition proposed that would
probably be an effective way of prevention of serious offences (as opposed to
injury or damage) to other persons than the actor, and which is likely to be
necessary means for that purpose". Therefore Feinberg argues that the harm principle sets the bar
too high and that some forms of expression can legitimately be prohibited by law
because they are very offensive. But as offending someone is less serious damage to someone, the
penalties imposed should be higher for causing damage. Mill, on the contrary, does not support
legal sanctions if they are not based on the principle of harm. Given that the degree in which
people may offend varies, or may be the result of unjustified prejudice,
Feinberg suggests that a number of factors must be taken into account when
applying the principle of the offensive, including: the scope, duration and the
social value of the speech, the ease with which cannot be avoided, the reasons
for the speaker, the number of aggrieved personsthe intensity of the offense and the general
interest of the community.
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