The First Amendment vs the Human Rights Act
Two defences of free expression, two very different ideas of freedom.
As you’ll no doubt recognise, the following is the text of the First Amendment to the US Constitution (1791):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Up next is a piece of text, formulated originally in the late 1940s in the European Convention of Human Rights, that addresses the same liberties of speech and thought – Article 10 of the Human Rights Act (1998):
1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
These two defences of freedom of speech are often seen as part of the same great liberal tradition. Human Rights, Bill of Rights… you say tomayto, I say tomarto. Yet, look a little closer, and the distinction between the two emerges. The differences between the two are not just differences of style; they are also differences of political worldview, differences resting on wholly distinct conceptions of liberty.
The most obvious contrast is in length. Whereas the First Amendment provides a defence of people’s right to free speech, to freedom of conscience, to free association and to the freedom to petition the government, in just three, clause-packed sentences, Article 10 is nearly three times as long and about half as clear.
Why? Because – and here we come to a crucial difference – the First Amendment is qualification-free, whereas Article 10 is caveated to death. In fact, Article 10 expends more verbal energy telling you when free expression ought to be restricted than it does explaining when it ought to apply. If the First Amendment is crystal clear in its absoluteness – ‘Congress shall make no law…’ – Article 10 is muddy in its uncertainty. It is the legalistic equivalent of the everywhere-repeated sentiment: ‘I believe in free speech, but…’
The legalistic overflow of ‘duties and responsibilities’ of Article 10 touches on another key difference – namely, the implied role of the state. The First Amendment asks government to do one thing: nothing. Do not abridge free speech, prohibit religious freedom, or prevent people from peaceably assembling. Article 10, however, asks the state to do a great deal. It asks the state to curtail free expression if, for example, it interferes with ‘public safety’, or it threatens ‘health or morals’, or it damages ‘the reputation or rights of others’. So, whereas the First Amendment is all about setting a limit on the state’s power, Article 10 is all about its expansion.
And here we approach the underlying difference between the First Amendment and Article 10. For the Founding Fathers, and those to whom they were intellectually indebted, be it Thomas Paine or John Locke, what mattered was guaranteeing the individual’s freedom from the state. That was the objective: to provide the individual with the freedom to flourish, by allowing people the state-free space in which to think, speak and associate freely. Not because all men are rational, but because all men have the potential to be. The optimism of this outlook is in stark contrast to the postwar pessimism which infused the drafting of the European Convention of Human Rights. Individual freedom was not an aspiration, but a problem to be managed – a threat to the ‘morals’ or ‘health’ of ‘others’. That’s why, at the last, Article 10 is concerned not with protecting free expression, but with restricting it.
If Article 10 represents a fear of freedom, the First Amendment represents its rugged embrace.
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