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A friend claimed the First Amendment was unnecessary, and mentioned that other countries tended to get along well without it.
I realized I didn't actually know much about how freedom of speech or expression worked in other countries, and figured I'd ask some people here who were a little more knowledgeable.
Do other countries have any free speech protections similar to the First Amendment, and if so, how do they work? If not, how are free speech cases handled?
england-and-wales and northern-ireland
It's called the Article 10 Right to Freedom of Expression and can be found at Schedule 1, Part 1 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.
Note that paragraph 2 makes this a qualified right. These are rights:
...that permit interferences subject to various conditions. For example, the right to respect for private and family life (Art. 8 of the ECHR) and the right to freedom of expression (Art. 10 of the ECHR) allow interference, but such interferences must be in accordance with the law and necessary in a democratic state for the requirements of public order, public health or morals, national security or public safety. Source
Article 5 [Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
Sources:
For example, the eritrea Eritrean constitution, Art. 19 guarantees
- Every person shall have the right to freedom of thought, conscience and belief.
- Every person shall have the freedom of speech and expression, including freedom of the press and other media.
- Every citizen shall have the right of access to information.
and 6 other rights. As long as you have a license to publish and get prior approval from the government for your publication, you are alright.
Article 67 of the dprk Democratic People's Republic of Korea says that
Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association. The State shall guarantee the conditions for the free activities of democratic political parties and social organizations
sweden has a "Fundamental Law on Freedom of Expression", which is quite lengthy and specific. It is, however, a crime to publicly express disrespect for an group regarding race, color, national / ethnic origin, faith or sexual orientation. In Norway, Art. 100 of the constitution says that
No person may be held liable in law for having imparted or received information, ideas or messages unless this can be justified in relation to the grounds for freedom of expression, which are the seeking of truth, the promotion of democracy and the individual's freedom to form opinions. Such legal liability shall be prescribed by law.
(etc.), and likewise criminalizes hate speech.
Libel, fraud and death threats are communicative acts that are universally banned, and child pornography is almost universally illegal, so no country is anarchic in terms of expression. Every nation has limits on expression, which are generally taken to be implicitly justified exceptions to existing guarantees of freedom of expression. In some countries, the exceptions are named in detail in the constitution, in some (North Korea, Eritrea) the constitution is simply ignored.
Comprehensive rights protections
Australia is unique among liberal western democracies in that it does not have an enumerated Bill of Rights; neither in its Constitution nor as an enacted piece of legislation. With the exception of the ACT and Victoria, the states and territories don't have one either.
Before Federation, the Constitutional Convention considered and rejected (19 votes to 23) including protections similar to those in the US Constitution. It failed largely because it was feared that due process protections would interfere with the racially discriminatory policies against aboriginal Australians and people of Chinese descent which all the colonies enthusiastically pursued. Australia in the late nineteenth and early to mid-twentieth centuries was breathtakingly and unashamedly racist. Today, racism is largely personal rather than institutionalised.
Proposals for a Constitutional Bill of Rights were considered in 1929 and 1959 but neither progressed to a referendum. In 1942, a referendum was held on expanding Federal powers over post-war construction counterbalanced by Constitutional limitation on Parliament regulating freedom of expression and extending freedom of religion to the states: it was rejected at the referendum. A charter of human rights went to referendum in 1988: it was overwhelmingly rejected with no state reaching 30% approval.
Several attempts to legislate a comprehensive Bill of Rights have also failed to go anywhere. However, individual pieces of legislation have created rights in specific areas.
Constitutional rights
That said, the Constitution gives the following express rights:
The courts have also found implied rights that are necessary to give effect to the democracy spelled out in the constitution:
The High Court has also indicated that the classes of implied rights are not necessarily closed.
Non-constitutional rights
Australia inherited the common law rights of England and, subject to subsequent statutory and judicial amendments, these are still in force. This means that freedom of expression is the default assumption baring any specific laws proscribing it.
Australia is also a party to seven core international human rights treaties. The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR). Also relevant are articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 12 and 13 of the Convention on the Rights of the Child (CRC), and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).
In addition, specific legislation such as the Sex Discrimination Act and the Racial Discrimination Act provide both rights and restrictions on free speech within their particular sphere. Most such legislation is replicated at a state and territory level.
Permissable restrictions
Derogation
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'.
Limitation
[U]nder article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.
The Constitution du 4 octobre 1958 doesn't enumerate such rights, it describes how the Fifth Republic functions, powers, or checks and balances, and although it has been amended 24 times, there is no mention of freedom of speech in the text.
The preamble of the Constitution outlines something important for this question however:
The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.
(The preamble was amended to include the Charter for the Environment of 2004, the original 1958 preamble obviously doesn't mention it, thus it has been left out here.)
A 1971 decision of the Conseil Constitutionnel struck down a law as anticonstitutional arguing the 1789 Déclaration des Droits de l'Homme et du Citoyen had full constitutional force because it is mentioned in the preamble of the Constitution. The Déclaration is thus part of the bloc de constitutionnalité.
The Déclaration has one article relevant to freedom of speech, and two about limits to freedoms:
Article 11 - The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.
Article 4 - Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.
Article 5 - The Law has the right to forbid only those actions that are injurious to society. Nothing that is not forbidden by Law may be hindered, and no one may be compelled to do what the Law does not ordain.
Freedom of speech is a constitutional one, however it also can be limited by law, if the law aims to protect society from harm or protect other people's rights. The Constitutional Council has the power and responsibility to strike down laws that overreach and needlessly restrict freedom of speech, or any other freedom (as outlined in articles 61, 61-1, 62 of the Constitution).
As for forms of speech restricted by law, they include defamation and copyright infringement (or perhaps more accurately authors' rights infringement), this much is common to the United States.
A difference however is that hate speech, Holocaust-denial, or the use of Nazi symbols for their political value is considered harmful to society or infringes on other citizens' freedoms, as the law does explicitly forbid such forms of expression.
Similarly to defamation, what constitutes hate speech is ultimately to be adjudicated by the courts.
In Canada, the right to freedom of expression is an explicit right, as described in Section 2 of the Canadian Charter of Rights and Freedoms:
Fundamental Freedoms
- Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
However, Section 1 of the Charter also notes that
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In other wise, limits on free speech may be imposed if they can be "demonstrably justified."
Whether the government can justify a law that infringes upon a Charter right is currently determined by the Oakes test, which requires that when a law is challenged on Charter grounds, the government must establish:
Under this test, the Supreme Court of Canada has found that Section 1 allows for limits on various types of speech:
Finally, in the context of comparing Canada's speech laws with those of other countries, it is also important to note R v Zündel, a 1992 decision concerning a Holocaust denier. Zündel was prosecuted under a broad law against knowingly publishing false statements; but the Supreme Court found that the particular law did not have a pressing purpose, nor were its impairments of charter rights minimal, and so it struck down the law. More recently, in June 2022 Canada enacted an antisemitism law prohibiting Holocaust denial. The constitutionality of this law has, to the best of my knowledge, not yet been tested.
Freedom of speech in the Netherlands is guaranteed by article 7 of the constitution of the Kingdom of the Netherlands: Grondwet voor het Koninkrijk der Nederlanden or grondwet (ground/base law) for short. The article is comprised of the following four clauses:
- Niemand heeft voorafgaand verlof nodig om door de drukpers gedachten of gevoelens te openbaren, behoudens ieders verantwoordelijkheid volgens de wet.
- De wet stelt regels omtrent radio en televisie. Er is geen voorafgaand toezicht op de inhoud van een radio- of televisieuitzending.
- Voor het openbaren van gedachten of gevoelens door andere dan in de voorgaande leden genoemde middelen heeft niemand voorafgaand verlof nodig wegens de inhoud daarvan, behoudens ieders verantwoordelijkheid volgens de wet. De wet kan het geven van vertoningen toegankelijk voor personen jonger dan zestien jaar regelen ter bescherming van de goede zeden.
- De voorgaande leden zijn niet van toepassing op het maken van handelsreclame.
This can be translated as
- Nobody needs prior permission to publish in print thoughts or feelings, under condition of everyone's responsibility by law.
- The law sets rules for radio and television. No prior supervision is performed on the contents of a radio or television broadcast.
- To publish thoughts or feelings through means other than those mentioned in the previous clauses, nobody needs prior permission for the contents thereof, under condition of everyone's responsibility by law. The law may regulate viewings accessible to persons younger than sixteen years to protect decency.
- The prior clauses are not applicable to trade advertisements.
While this law is somewhat archaically formulated, in practice it appears largely applied in spirit, meaning that its application is not limited to the specific media mentioned in the law.
Additionally there is the European Convention on Human Rights which also guarantees free speech, and which the European Union requires all members and candidate members to be signatories of.
Another thing of interest may be to learn that the USA is built on common law (focus on precedent), whereas the Netherlands, and in fact the majority of Europe is built on civil law (focus on written law), which may impact through which (combination of) means a country protects certain rights.
The 1977 Constitution of the USSR (in force until 1991) states:
Article 50:
В соответствии с интересами народа и в целях укрепления и развития социалистического строя гражданам СССР гарантируются свободы: слова, печати, собраний, митингов, уличных шествий и демонстраций.
Осуществление этих политических свобод обеспечивается предоставлением трудящимся и их организациям общественных зданий, улиц и площадей, широким распространением информации, возможностью использования печати, телевидения и радио.
( DeepL translation:
In accordance with the interests of the people and with a view to strengthening and developing the socialist system, the citizens of the USSR are guaranteed the freedoms of: speech, the press, meetings, rallies, street marches and demonstrations.
The exercise of these political freedoms is ensured by the provision of public buildings, streets and squares for workers and their organisations, by the wide dissemination of information, and by the possibility of using the press, television and radio. )
Article 57:
Уважение личности, охрана прав и свобод граждан — обязанность всех государственных органов, общественных организаций и должностных лиц.
(DeepL translation:
Respect for the individual and the protection of the rights and freedoms of citizens are the responsibility of all state bodies, public organisations and officials. )
This is pretty much explicit. However, Article 59 also says:
Осуществление прав и свобод неотделимо от исполнения гражданином своих обязанностей. Гражданин СССР обязан соблюдать Конституцию СССР и советские законы, уважать правила социалистического общежития, с достоинством нести высокое звание гражданина СССР.
(DeepL translation:
The exercise of rights and freedoms is inseparable from the fulfilment of a citizen's duties. A citizen of the USSR must observe the USSR Constitution and Soviet laws, respect the rules of socialist society, and carry with dignity the high title of a citizen of the USSR. )
So the freedom of speech was conditional, the state was supposed to guarantee the constitutional rights, but the citizens were supposed to abide by the Constitution. I guess this makes it a bit less "free" than the USA variant (and note that "suppose" is the key word here).
The Danish constitution article 77 says
Grundloven § 77
§ 77 Enhver er berettiget til på tryk, i skrift og tale at offentliggøre sine tanker, dog under ansvar for domstolene. Censur og andre forebyggende forholdsregler kan ingensinde påny indføres.
This can be translated as
The constitution § 77
§77 Everyone is entitled to in print, in writing and speech, to publish their thoughts, under penalty of the courts. Censorhip and other preventative measures and rules cannot be reintroduced.
This article is being violated by hate-speech laws (being a preventative measure) and was nearly totally abolished when a law nearly passed that would force "social media" companies to unrank dissenting views. Fortunately, the EU stopped it, because it wanted to introduce the same law itself.
