In this blogpost, Haridya Iyengar, Student, Jindal Global Law School, Haryana writes about whether there should be a limitation on freedom of speech and expression on the basis of harm and offence principle
This paper explores the topic of freedom of speech and expression. It will seek to look at the different limitation principles on freedom of speech and expression.
The freedom of speech and expression is a right without which other rights are hard to acquire and defend. The right to freedom of expression has its root all the way back in the 17th-century struggle of European legislators for freedom of speech. However, there is a continuing struggle in the world for the freedom of expression often going to the extent of limiting government powers.
If liberty of expression was not valued there would have been no problem, freedom of expression would have simply been curtailed for other values. Free speech only becomes an issue when it is highly valued because only then do the limitations placed on it become controversial. The state obligation to uphold freedom of expression is absolute and immediate under the present international convention. However, just like other forms of liberty complete freedom of speech and expression can be a problem if there are no limitations placed on it. Since, there would be no prohibition on libellous statements concerning child pornography, advertising content and releasing state secrets. Most limitation have dealt with an expression or sentiments contrary to religious, political or other beliefs. The complexity and importance of freedom of expression have led to many extensive case laws before the national courts and international supervisory mechanism.
Harm Principle and Free Speech and Expression
No society has existed where speech has been limited to some extent. According to Haworth, a right to freedom of speech is not something we have, not something we own like our arms and legs, it is something that is granted. The problem, however, is deciding where to place the restriction.
According to John Stuart Mill, fullest liberty of expression is required to push our arguments to their logical limit. Such liberty must exist within every subject matter so that we have absolute freedom and sentiment on all subjects. However, Mill does place one limitation or rule referred to as the Harm principle which states that, “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” There is a great number of debates on the meaning ‘harm’. According to Mill, Harm is something that would injure the rights of other people. This must be differentiated from an offence which is hurting the sentiments of others. He further argues that free speech must not be limited because of offences since what may hurt one person’s feelings might not hurt another’s and so offences are not universal.
If we accept the harm principle, we have to ask ourselves what type of speech causes harm. Mill uses a hypothetical about a corn dealer to answer this question. Assume there is a corn dealer who does not sell corn to the poor. It is acceptable to claim that the corn dealer starves the poor people if expressed on a medium such as a blog. However, it is not acceptable to express the same view in front of an angry mob gathering in front of the corn dealer’s house. This is because the latter expression will directly cause harm to the corn dealer. So for the harm principle to actually apply one must be directly harmed by the expression. So, if we base our defence on the harm principle, there are going to be very few sanctions imposed on written and spoken words. Sanctions will only be imposed when we can show direct harm to the rights of individuals.
Offence Principle and Free Speech and Expression
Joel Feinberg argues that the harm principle does not reach far enough in limiting free speech. He suggests that in some instances we also need an offence principle which can act as a guide to public censure. He suggests that there are some statements that must be banned because they are very offensive. However, offending someone is less serious than harming someone so; the penalties imposed must also be less severe. Such a principle is hard to bring into application because many people take offence as a result of bigotry and unjustified prejudices. Furthermore, there are some instances where people can be deeply offended by statements many find amusing.
To prevent penalties being imposed on less serious offences, Feinberg suggests that, a variety of factors need to be taken into consideration before limiting speech with the offence principle. These factors include the social value and duration of the speech, the motives of the speaker, number of people offended, the intensity of the offence and the interest of the community at large.
Paternalistic limitation of Free Speech
This principle suggests that agents performing the action which might offend or harm others do not have a full grasp of the consequences caused and hence can be prevented from engaging in that act. This enters the realm of argument where the state knows better than the individual what is in his best interest.
While most arguments agree that paternalistic limitation is required, they disagree about the degree of the limitation imposed. For instance, Mill believes that paternalistic intervention must be imposed only when there is harm done directly to the rights of individuals.
Democracy and Free Speech
This principle argues that freedom of expression should be compromised in favour of other principles such as equal respect for all citizens. Stanley Fish suggests that the task we face is not to arrive at a hard and fast rule that govern all speech rather, we have to find a workable compromise. This principle reminds us that we are not dealing with free speech in isolation but, are comparing free speech with some other good such as right to security or equality. So while deciding whether or not to limit free speech we must determine whether the other right has a higher value than speech.
While some argue that the harm principle supported by the offence principle is enough of a limitation for free speech, others argue that speech can be limited for the sake of other liberal values. It is up to the reader to decide which limitation on speech is an appealing possibility.
 Haworth, A., 1998. Free Speech, London: Routledge