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Summary 10. Right to Expression and Assembly
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10. RIGHTS TO FREEDOM OF EXPRESSION AND ASSEMBLY1. IMPORTANCE AND FUNCTIONS OF FREE SPEECH
First among equals? – Without free speech, no ability to advocate for other rights. (Chicken/egg problem with
socioeconomic rights – if you are starving (i.e., no right to food), how can you effectively exercise your speech rights?)
and because it is essential to free and democratic society (Political speech is most essential (the ability to run for office
and vote for candidates based on a set of policy views), and for candidates/voters to openly debate competing views.)
A. Functions of Free Speech
1) Search for the truth (“marketplace of ideas”): A very-enlightenment era notion that society and its participants
should be searching for truth in all disciplines and the only way to achieve that is to subject every idea and
viewpoint to serious scrutiny.
a) J.S. Mill – being challenged allows one to change one’s mind or refine/hone those ideas.
2) Self-governance: Public discussion and debate is crucial to self-government (Meiklejohn)
a) Speech and Debate Clause in U.S. Constitution (Art. I, Sec. 6). If this applies to elected representatives, then
it should apply to the people as well.
b) Akhil Amar: Free speech is sacrosanct/gains greater legitimacy as a constitutional principle b/c robust and
open debate characterized the drafting and ratification of the U.S. Constitution itself.
3) Self-fulfilment: This justification has a more artistic bent, and it basically gets at what it means to be human. The
idea is to fully develop human capabilities, people must be allowed to express themselves freely in any endeavor
(art, music, literature, etc). to develop a sense of self-respect that is essential to human dignity and to human
flourishing.
a) Think here of all the great artists that fled to the West when the Soviet Union was formed in 1918.
4) Checking gov’t abuses: Preventing elected officials from running wild – e.g., Trump’s ties to Russia.
5) Promoting tolerance: Free speech can help shape the “intellectual character of society” making it more accepting
of other points of view.
6) Valuing dissent: Dissent pushes society forward – need courageous people at the extremes to make us all think in
new ways.
7) Safety Valve: Allows people to vent their frustrations through words/expression, and hopefully it will prevent
violence/revolution.
2. DIFFERENT APPROACHES TO FREE SPEECH
United States of America: First Amendment to the Constitution states “Congress shall make no law… abridging the
freedom of speech”
v Natural law conception – pre-existing right that cannot be taken away.
v Absolutist view, with limited exceptions (1) “Fighting words”/speech that may cause imminent violence can be
limited; (2) False speech (defamation and fraud are still crimes).
v Hate speech, pornography, flag burning permitted – very reluctant to impose “viewpoint-based restrictions” due
to fear of gov’t censorship.
Germany: Basic Law, article 5: [Freedom of expression, arts and sciences]
v 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.
v Very accepting of hate speech regulations, particularly viewpoint-based ones – Nazi speech and symbols, including
Nazi salutes and swastikas, are legally banned, as is holocaust denial.
Canada: Section 2(b) of the Canadian Charter of Rights and Freedoms (1982), “Everyone has… freedom of thought,
belief, opinion and expression, including freedom of the press and other media of communication.”
Subject to limitation of Section 1: “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.”
South Africa: Constitution (1996), Section 16: Freedom of expression.
1) Everyone has the right to freedom of expression, which includes -
a) freedom of the press and other media;
b) freedom to receive or impart information or ideas;
c) freedom of artistic creativity; and
d) academic freedom and freedom of scientific research.
2) The right in subsection (1) does not extend to -
a) propaganda for war;
b) incitement of imminent violence; or
c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Chloe T 41
, 3. RIGHTS IN THE BASIC LAW AND BORO
A. Provisions
Free speech regime based on international human rights law standards. Article 16 of HKBORO is identical to the ICCPR
Article 19:
16 1) Everyone shall have the right to hold opinions without interference.
2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.
3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary—
a) for respect of the rights or reputations of others; or
b) for the protection of national security or of public order (ordre public), or of public health or morals.
17 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.
Basic Law:
27 Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of
assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and
to strike.
41 Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance
with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.
B. Limits on Expression and Assembly
v Most civil and political rights are qualified (Absolute - right against torture, right to life)(Absolute – equality?)
v Civil and political rights have traditionally been adjudicated – unlike economic and social rights
Ø Degree of protection varies with judicial experience
Ø International and comparative jurisprudence used to inform domestic constitutional decisions
Ø UN Human Rights Committee and Siracusa Principles
Ø Widely used by courts (e.g., CFA in Ng Kung Siu)
Ø Provides judges authority on how to interpret abstract - potentially very wide grounds for restriction based
on “ordre public”
v Scope of parallel rights in BL and BORO treated as equal (Ng Kung Siu)
v The rules that BORO creates for limiting rights – apply to parallel BL rights
Ø This has rights-protective effects but can also weaken rights protection b/c BORO lists all the exceptions in
the ICCPR that are not listed in the Basic Law.
v Provided by law / in conformity with the law
Ø Formal requirement – clear basis in law, preferably primary legislation; can’t simply be a government policy
or decision
Ø Qualitative aspect
v Necessary in a democratic society
Ø A further restriction on limitation clauses
Ø The State needs to demonstrate that the limitations do not impair the democratic functioning of the society
[Siracusa Principles, para 20].
Ø “While there is no single model of a democratic society, a society which recognizes, respects and protects the
human rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights
may be viewed as meeting this definition. [Siracusa Principles, para 21]”
v Public order (ordre public)
Ø “The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules
which ensure the functioning of society or the set of fundamental principles on which society is founded.
Respect for human rights is part of public order (ordre public)…
Ø State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to
controls in the exercise of their power through the parliament, courts or other competent independent
bodies. [Siracusa Principles]”
v Principles try to establish that limits should be open to challenge, subject to separation of powers, and that weak
protection of individual rights is a form of public disorder
Chloe T 42
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