Which means of political expression are guaranteed under the Constitution?

The scope of freedom of speech

Freedom of speech is constitutionally protected as a fundamental right in many countries. The major arguments for free speech include enhancing democracy, preserving social stability, discovering truth, and advancing autonomy.4 However, there is also little disagreement that freedom of speech is not absolute, and that protection of free speech does not extend to situations in which one's speech impinges upon the legal interests and rights of other citizens and of society. This leaves room for the government to establish the scope of freedom of speech. In the United States, for example, an important solution to the scope of free speech is the categorical approach. The Supreme Court has indicated that there are three levels of protection for speech, which were summarized by Justice John Paul Stevens in R.A.V. v. City of St. Paul. He wrote in a concurring opinion: "our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and non-obscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all."5 Theoretically, defining categories of most protected, less protected, and unprotected speech provides greater guidance than a system in which almost all speech cases have to be reviewed on a case-by-case basis. But there is a great deal of debate about why some categories of speech are protected while others are not. There is also a recurring problem of whether the Court's definitions of the categories are sufficiently specific and applicable.

In China, while the Constitution provides protection for freedom of speech, it also stipulates that the exercise by citizens of their freedoms and rights may not infringe upon the interests of the state, society, and other citizens. This is a basic principle which citizens are required to comply with in their exercise of the right to free speech. Explicating this provision, China has set up a wide range of restrictions on the freedom of speech for the purposes of protecting individual, social, and national interests. These restrictions are contained in such regulations as the Regulations for the Administration of Audio-Visual Products (enacted in 1994), the Regulations for the Administration of Broadcasting and Television (1997), the Regulations for the Administration of the Printing Industry (1997), the Regulations on Publication Administration (enacted in 1997, revised in 2002), and the Decision of the NPC Standing Committee on Safeguarding Internet Security (2000). Under these regulations, the following content is prohibited from being published or disseminated:

Anything that goes against the basic principles determined by the Constitution;

Anything that endangers the unification, sovereignty, and territorial integrity of the country;

Anything that endangers state security, reputation and interests;

Anything that instigates national separatism, infringes on the customs and habits of minority nationalities and disrupts solidarity of nationalities;

Anything that discloses state secrets;

Anything that publicizes pornography and superstition or plays up violence, endangers social ethics and the fine traditions of national culture; and

Anything that insults or slanders others.

The "basic principles determined by the Constitution" listed above in item 1 refer generally to the four cardinal principles that China must adhere to, namely, the socialist road, the people's democratic dictatorship, the leadership of the Communist Party, and Marxism-Leninism and Mao Zedong Thought. These principles were proposed in 1979 by Deng Xiaoping, the general architect of China's reform and opening up, and adopted in the Chinese Constitution in 1982. Thus, any speech that attempts to challenge such core principles will be found to be in violation of Chinese law. Items 2, 3, 4, and 5 above all concern national security. In Chinese political culture, national security, honor, and interests are traditionally considered more important than individual rights and freedom; so speech that may endanger national interests or incite the overthrow of the government is strictly restricted by Chinese law. In essence, the prohibited content in item 1 also concerns national security, since opposing the four core principles is essentially about opposing the existing political system. Item 6 concerns social order. Any act of disseminating pornography, cults, superstition, gambling, and violence is prohibited by Chinese law. The last item concerns personal rights and reputation. This right is relatively new, but has been increasingly acknowledged by Chinese law.

Moreover, China's Criminal Law, General Principles of the Civil Law and other basic laws all include provisions on the scope of free speech. In order to safeguard national security, for example, the Criminal Law makes it a crime to incite secession, ethnic hatred and discrimination, the overthrow of the government, and violent resistance to the enforcement of laws and regulations. In order to maintain social order, the Criminal Law also makes it a crime to disseminate pornography, organize and make use of cults, superstition, and secret societies to undermine the implementation of state laws and administrative regulations. In addition, the tort provisions in the General Principles of the Civil Law are often used to protect the reputation of individuals and organizations.

Freedom of the US Press in the Globalizing Era

Freedom of speech and the press has been the international buzzword since the end of the Cold War in the late 1980s. The positive concept of press freedom has crystallized the undisputed paradigm throughout the world, and it inspires the standard for quality journalism. The growing impact of the modified libertarian press theory with an emphasis on the state's affirmative role in press freedom on Asia, former eastern Europe, and Latin Africa is credited partly to the American experiment of 200-plus years with a free press. At the end of his highly acclaimed book of 2010, Uninhibited Robust and Wide-Open: A Free Press for a New Century, meanwhile, Columbia University President Lee Bollinger, a leading First Amendment scholar, noted:

This book has looked at the problem of what must be done for a global free press from a U.S. perspective. But we need to do this from the vantage point of other countries as well, especially those that generally share the same philosophy about the importance of a free and independent press. A collective effort toward the same end is a necessity.

(Bollinger, 2010)

IV.A.2 Press Freedom

The Constitution provides for freedom of speech and press. In June 1997, however, Sherry O'Sullivan, the former editor of the FSM News, was denied re-entry into the country by immigration authorities as she tried to board a flight on Guam for Pohnpei. The action was the culmination of a pattern of harassment against O'Sullivan that began three months earlier when the FSM Congress passed Congressional Resolution 9-106, which sought to have her deported for her reports on public servant tax evasion. O'Sullivan edited and published the FSM News with two partners from May 1994 until March 1997, when she was forced to resign by her partners after the congressional resolution. She had been in Guam to address the Micronesian chapter of the Society of Professional Journalists on the campaign of harassment.

II.A Press Laws

The Singapore Constitution provides the right to freedom of speech and expression in Article 14, which was modeled after that of the Indian Constitution. It is a limited right. First, it guarantees freedom of speech and expression only to citizens of Singapore. Second, it gives the right only to convey expression, not the right to receive expression. Third, it does not expressly deal with the issue of prior restraint, implicitly allowing prior restraint. Fourth, the right is subject to the parliament's power to legislate in the interest of national security, public interest, and public morality and for the maintenance of foreign relations.

The Newspapers and Printing Presses Act of 1974 licenses local printing presses as well as local and foreign newspapers and magazines. The law requires annual licensing of daily newspapers, which only public companies (not individuals) can own. Such a company should have at least 50 shareholders, with no single shareholder owning more than 3%. All directors must be locals. The company must create two kinds of shares: ordinary shares, which make up 99% of the company with 1 vote each, and management shares, which make up just 1% of the company with 200 votes each. The minister approves the ownership and transfer of the management shares. The 1986 amendment to the act empowers the minister to restrict the circulation of offshore publications that “engage in domestic politics.” Since then, Time, the Asian Wall Street Journal, the Far Eastern Economic Review, AsiaWeek, and The Economist have had their circulations restricted under the law.

The Undesirable Publications Act prohibits the sale, importation, or circulation of publications published or printed outside or within Singapore that are deemed “contrary to the public interest.” During recent years, the government has used this law against soft porn and alternative lifestyle publications.

Besides universal issues such as copyright and defamation, other laws pertinent to the media are the Criminal Law (Temporary Provisions) Act, the Emergency (Essential Powers) Act, and the 1963 Internal Security Act (ISA). The ISA allows for detention without trial, although the last time a journalist was jailed under ISA was during the 1970s. Other laws with provisions to regulate the press but that have so far not been used against the press are the Maintenance of Religious Harmony Act, the Parliament (Privileges, Immunities, and Powers) Act, and the Sedition Act of 1964.

II The Romans

In Republican Rome, citizens never directly connected freedom of speech with the more general concept of liberty. Yet the terms they used, libera lingua and oratio libera, revealed that a connection did exist. Cicero exemplified such usage and showed us that deliberation is the essence of liberty. In his On the Commonwealth, for example, Cicero delineated between three types of government by assessing the amount of allowed citizen input. “In monarchies,” he wrote, “no one else has sufficient access to shared justice or to deliberative responsibility; and in the rule of an aristocracy the people have hardly any share in liberty, since they lack any role in common deliberation and power.” But when Cicero spoke of the equal deliberation that defined a democracy, he thought such liberty excessive: “When everything is done by the people itself, no matter how just and moderate it may be, that very equality is itself inequitable, in that it recognizes no degree of status.”

We find that Cicero disparaged democracy unless it could be “blended and mixed from these first three types” of commonwealth. Such a mixed constitutional democracy could provide the requisite liberty, one promoted by the Founding Fathers of the United States, for example, who frequently called upon Cicero as an authority. “And so in no other state than that in which the people has the highest power does liberty have any home,” wrote Cicero. “Liberty, than which nothing can be sweeter, and which, if it is not equal, is not even liberty.” On the Commonwealth, however, clarified that freedom of expression in the Roman Republic rested primarily with those in authority.

Yet Montesquieu showed us in 1748 that those in authority could also provide inspiration, even imperial authority. He reported that the emperors Theodosius, Arcadus, and Honorius instructed their magistrate that “Though a man should happen to speak amiss of our person or government, we do not intend to punish him: if only he has spoken through levity, we must despise him; if through folly, we must pity him; and if he wrongs us, we must forgive him. Therefore…you are to inform us accordingly, that we may be able to judge of words by persons, and that we may duly consider whether we ought to punish or overlook them.”

Ironically, Imperial Rome had recognized the connection between free speech and political freedom. Widespread servility made commentators such as Philo, Dio Chrysostom, Plutarch, and Epictetus aware that adulation—a defining vice of Imperial society—ate away a citizen's moral character. They connected such moral degeneration with the lack of free speech under a tyranny. In other words, sycophancy reduced a person's morality, and the ability to speak one's mind advanced that same person's morality. Tacitus exemplified this perspective in his Annals, but addressed it directly in The Dialogue on Oratory.

The Dialogue compared the orators of Republican and Imperial Rome, ending with the claim that the decadence of Imperial oratory was due to the lack of opportunity for its display—the opportunity to speak freely. True eloquence, wrote Tacitus, could flourish only under a free government, but such a republic involved a certain amount of turbulence. In such a state, political success was unattainable without eloquence, and free speech thrived for “just as a spacious course tests a fine horse, so the speaker has his field, and unless he can move in it freely and at ease, his eloquence grows feeble and breaks down.”

Tacitus preferred the Republic but he recognized the necessity of strong, periodic power in Roman government, writing in The Dialogue, for example, of the tranquility of “the emperor's perfect discipline [that] put its restraints on eloquence as well as on all else.” Yet Tacitus believed a permanent imperial system subverted Roman tradition and corrupted freedom and public morality. Exercising his noted irony, Tacitus proffered this belief in The Dialogue through a debate that carried several levels of meaning. In a thoroughly anti-republican statement, for example, Tacitus specified the genesis of free expression: “the great and famous eloquence of old is the nursling of the licence which fools called freedom; it is the companion of sedition, the stimulant of an unruly people, a stranger to obedience and subjection, a defiant, reckless, presumptuous thing which does not show itself in a well-governed state.” A messy state, democracy; the state generated by unbridled speech.

By analyzing the art of dissimulation, and the resulting legal and political corruption, Tacitus fascinated and influenced political thinkers of the 17th and 18th centuries. One example came from the opening of Tacitus' Histories of 105 AD, in which he stated that “Modern times are indeed happy as few others have been, for we can think as we please, and speak as we think.” Nearly 16 centuries later, Spinoza used the italicized clause as the final chapter title of his 1670 Theological-Political Treatise.

Freedom of Speech

While the criminal justice educator enjoys the same constitutionally guaranteed freedom of speech as any other citizen, there are limits. These limits exist as a function of their employment contracts. Some educational institutions do not mind if their employees are openly critical of colleagues, supervisors, or institutional policies. Others have strict prohibitions about discussing such things in public. In addition, speech that is hateful, prejudiced, or threatening; that incites violence or criminality; or that fails the vague institutional standards of morality can result in sanctions or termination. The same is true of speech that violates the privacy of students as dictated by institutional policies.

Consequently, freedom of speech and social media are uncomfortable bedfellows in the world of academia, as more and more professors are being sanctioned or terminated for what it is learned by others that they have expressed online.

First amendment obstacles

A further complication arises by virtue of the First Amendment guarantee of freedom of speech, which by the Fourteenth Amendment also applies to state laws. In other words, a law such as that enacted in Florida, which prohibits cyberbullying may be seen as infringing the cyberbully's freedom of expression and for that reason be deemed to be invalid (King, 2010; Sumrall, 2016). It has been held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, 1969, p. 506).

There has yet to be a United States Supreme Court ruling on the constitutional validity of cyberbullying laws (Sumrall, 2016). Until there is such a ruling, lower courts that are called upon to consider the question only have a quartet of Supreme Court decisions concerning the exercise of free speech in a school context in other circumstances to guide them. The most influential decision, Tinker v. Des Moines Independent Community School District (1969), held that the suspension of several students from school after wearing black armbands to protest the Vietnam War contrary to a school's policy against wearing armbands infringed their First Amendment rights. This was because wearing the armbands did not “materially and substantially” interfere with the requirements of appropriate discipline at the school, and did not invade the rights of other students. This ruling has since been described as the “magna carta of students' expression rights” (McCarthy, 2007, p. 15).

By contrast, in Bethel School District v. Fraser (1986), the Court upheld the suspension of a student who, when delivering a speech at a school assembly nominating a fellow student for Student Body Vice President, referred to the candidate in terms of an “elaborate, graphic and explicit sexual metaphor.” The Court distinguished these facts from those in Tinker because the speech here involved more than passive, undisruptive conduct but instead could have been seriously damaging for an immature audience since it glorified male sexuality and insulted teenage girls. It held that public schools had a responsibility to instill fundamental values of “habits and manners of civility” upon their students. Similarly, in Hazelwood School District v. Kuhlmeier (1988), the Court upheld the acts of a principal who refused to allow students to include an article on teen pregnancy and another on divorce in the school newspaper on the ground that they were topics that were not appropriate for younger students and his concern that the students and their parents who were referred to in the articles, while not named, could nevertheless be identified from their contexts. Rather than apply the Tinker standard, the Court noted that the newspaper was published as part of the school curriculum, largely controlled by the school and designed as part of the student's training and held that public schools could prohibit students' speech in such a school-sponsored activity if the restriction was “reasonably related to legitimate pedagogical concerns.” Finally, in Morse v. Frederick (2007), the Court held that a school was entitled to suspend a student for holding up a banner promoting illegal drug use at a school-sponsored trip to watch the Olympic torch relay. Rather than review the Tinker standard, as some scholars thought the Court was going to do (e.g., McCarthy, 2007), it simply noted that Fraser had shown that the Tinker standard was not absolute and that in light of the dangers of drug usage and the prevalence of drugs schools have the right to prevent speech that could be viewed as promoting illegal drug use.

This sum effect of these cases is that lower courts in the United States have no clear direction when dealing with First Amendment arguments in cases involving action taken against cyberbullies. For example, as Beckstrom (2008) noted, some courts have found that websites created using home computers that make derogatory comments about other students and/or teachers have a sufficient nexus with the school campus to qualify it as speech occurring on campus, and have found that they had caused substantial disruption of school operations due to the emotional toll on staff, disciplinary problems among students caused by them accessing the sites and/or (in one case) the shutdown of the computer system to student access, which prevented them from using the computers for school intended purposes. By contrast, other courts have held that such off-campus behavior did not cause substantial or material disruption on campus because the websites in issue may have been crude and juvenile but were not obscene, were created on home computers outside of school hours and/or were not shown to have interfered with teachers' ability to teach or control their classes.

Accordingly, schools in the United States face what has been described as a “lose-lose” situation (Schultz, 2011): they may face being liable to targets of cyberbullying when they do not act sufficiently aggressively to prevent it, and being liable to off-campus cyberbullies' issue if a court decides that the school has violated their First Amendment rights (Fenn, 2013). As Fenn (2013) noted, with the threat of legal liability looming as an incentivising force, it is little wonder that when schools are pushed in both directions—to take action or not to take action—some suggest the best advice is “don't do nothing, don't do too much” (Schultz, 2011). How exactly that translates in practice as a guideline for responding to particular circumstances is far from clear.

IV Media Regulation and Censorship

Armenia is no different from most of the world in providing constitutional guarantees of freedom of speech and the press. In actual practice, however, there are a number of restraints on press freedom. When the U.S. State Department issued its assessment of human rights practices in Armenia for 2000, the report said the following:

Though the government respects the freedom of speech as a whole, yet there are some restrictions of press and the journalists practice self-censorship. There is no official censorship. The periodicals introduce different points of view. The opposition regularly criticizes the policy of the Government and the leaders as well as the President's policy in such vital questions as peaceful regulation of Nagorno Karabakh problem and privatization.

Few serious incidents were reported for the year, but the report also noted that most journalists practice self-censorship; this happens most frequently when the subjects of corruption and national security are addressed. One reason journalists may be reluctant to print stories on those subjects is based on a story that appeared in Haykakan Zhamanak that described the corrupt activities of a local businessman. In December 1999, about a dozen men entered the offices of that newspaper and beat members of the staff. Though the leader of the assailants was said to be the same local businessman, no charges were ever filed against him. The editor of Haykakan Zhamanak had earlier that year been found guilty of libel and slander, libel against a public official, and contempt of court for not publishing a retraction. He is out of jail on probation and refuses to pay the large fine.

USAID and IREX have collaborated to produce a Media Sustainability Index for Armenia and other countries. The index is composed of five scales. Each scale ranges from 0 to 4, with 0 being the least sustainable and 4 considered sustainable. When taken together, the five attributes used to evaluate the Armenian media fell in the unsustainable category. The attributes and the scores were as follows:

Legal and social norms protect and promote free speech and access to public information (score, 1.77).

Journalism meets professional standards of quality (score, 1.78).

Multiple news sources provide citizens with reliable and objective news (score, 2.00).

Independent media are well-managed businesses, allowing editorial independence (score, 1.20).

Supporting institutions function in the professional interests of independent media (score, 1.51).

For each of these attributes, the report's authors (composed of Armenian media professionals, a professor of sociology at Yerevan State University, NGO representatives, and an Armenian citizen not attached to the media) provide specific examples of progress toward sustainability, but note that much work remains to be done.

In the assessment of legal norms established to protect press freedom, the authors state that the 1991 Law on Press and Mass Media, which separates print media from broadcast media and ostensibly guarantees free speech, contains several supporting provisions that restrict the publishing of state secrets; “false and unverified news reports”; “news that advocates war, violence, ethnic and religious hostility, prostitution, drug abuse or other criminal act”; and “details of the private life of citizens.” If journalists violate the law, a first offense can result in a three-month suspension of a publishing license. If the law is violated a second time, the publication may be suspended for six months. The lack of clear explanation for any of the law's restrictions led the members of the committee to call for a new law that is more clearly stated and includes enforcement mechanisms.

A second law designed to govern broadcasting that was adopted in October 2000 is also vague and ineffectual, stated the committee. Three main problems the law raises are that the president is the only person authorized to appoint members of the committee regulating broadcasting, the restriction on the percentage of airtime for locally produced programs, and the ban on several types of programming, including that which includes libelous material and horror movies. Mesrop Movsisyan, president of A-1 Plus television, agrees with the view that a new law is needed, one that will protect rights rather than limit them, and that the current form of the law is imperfect and requires additional elaboration.

The Scope of Freedom of Expression

Freedom of expression is most cogently understood as freedom of communication. Even where freedom of expression is denominated freedom of speech, whether in legal documents or in colloquial discourse, the speech referred to surely covers more than spoken language. For example, no one disputes that freedom of speech covers written language as well; and if so, it is difficult to see how it could exclude sign language, hieroglyphics, pictographs, pictures, movies, plays, and so forth. Indeed, the Supreme Court’s legal protection afforded freedom of speech in the United States extends to all these media of expression, as well as to abstract artistic and musical performances. Usually, then, freedom of speech actually refers to freedom of expression or freedom of communication.

It is commonplace to distinguish between speech and symbolic speech. That distinction, however, is illusory. All speech – or more accurately, all communication – employs symbols, whether they are sounds, shapes, gestures, pictures, or any other tangible medium. Thus, there is no such thing as nonsymbolic communication, only communication that employs symbols that are less or more conventional. The same point also applies to any purported distinction between speech and conduct. All communication requires conduct of some sort, and any conduct can be communicative.

Which type of expression is well protected by the Constitution?

Are all forms of expression are protected by the Constitution?

What rights are guaranteed under the phrase freedom of expression?

What rights of expression are guaranteed in the Bill of Rights?