Freedom of expression, as described in Article 41 of the Constitution of Malta is said to be the protection of the rights of a person to be able to express himself or herself. It states that“…no person shall be hindered in the enjoyment of his freedom of expression …”[footnoteRef:1]. It also protects the freedom of one to be able to have his or her own ideas and opinions on particular topics, the ability to receive information freely, and the freedom to communicate these ideas and information. Similarly, in the First Amendment of the United States Constitution freedom of speech is safeguarded and shall not allow any law against the “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.”[footnoteRef:2] Although freedom of expression is protected and is seen in all these different laws, the question I would like to explore in my assignment is that of is freedom of expression actually a living concept, or is something that people speak about but in reality it doesn’t truly exist? [1: Article 41 Constitution of Malta] [2: First Amendment of the American Constitution ]
My reasoning for posing this questions comes as a result of the various incidents and cases over the years that bring into question the actual existence of freedom of expression. One of the earliest and most important cases of freedom of expression in the US is the case of Schenck vs United States of America in 1919. Schenck was a left wing extremist who did not believe in the idea of war and would print papers telling and encouraging people not to take part in the draft and therefore not go to war and in the eyes of the Court his action where viewed as dangerous to the national security. In his mind, Schenck was not doing anything wrong and was not doing anything to help the enemy but was just doing what he felt was right. However, this is not what the Supreme Court thought and this case gave birth to what is known as the “clear and present danger” standard, which meant that in particular cases such as this one the government is allowed to limit freedom of speech, something which was introduced in 1917 with the enacting of the Espionage Act which prohibited many forms of speech including any abusive language about the government or the flag of the United States[footnoteRef:3]. [3: “Schenck v. United States.’ Oyez, 16 Mar. 2018, www.oyez.org/cases/1900-1940/249us47.]
Another revolutionary case over the years regarding freedom of expression is that of ‘Edwards vs South Carolina’ where a group 187 African-American students marched to South Carolina State House to peacefully express their objections against the lack of civil rights that were being given to African-Americans on the 21st March 1961. The crowd did not engage in any violent conduct and did create any sort of chaos or disruption, but despite this they were confronted by a large group of police officers who proceeded to arrest all the students for breach of peace after they failed to obey commands made by the officers to disperse. This case was brought before the Supreme Court which ruled in favour of the petitioners saying that by arresting the petitioners, the state of South Carolina was not allowing these students to exercise their right to freedom of expression. As a result of this case, the Court, by using what is known as the “Due Process Clause of the Fourteenth Amendment”, made it illegal for states to criminalise the peaceful expressions made by people, even if such views are deemed to be unpopular.[footnoteRef:4] This case can also be linked to the lack of freedom of expression given to people of certain races. A well known case is that of the lack of rights given to black people in South Africa, resulting in their lack of freedom of expression. This is where we see great people over the years such as Nelson Mandela who stood up for people who where not given the right and freedom to express themselves in public. [4: Edwards v. South Carolina.’ accessed April 5th 2018]
The right to freedom of expression is not only something that is given to large communities or adults, but also to the younger generation who also should be allowed to express their opinion, and this can be seen in the case of Tinker v. Des Moines. In December 1965, Mary Beth Tinker, a 13 year old student, along with a group of her school mates decided to wear black armbands to school as a protest against the Vietnam war and the amount of people that where dying as a result of the war. The school did not agree with such behaviour and ordered the students to remove their bands. Tinker rejected and as a result she was sent home, along with 4 other students who got suspended until they removed the armbands. When the students returned they obeyed and removed the bands, but this time they came back wearing black clothing for the rest of the year. The students along with their parents, who were represented by the ACLU brought this case before the Supreme Court which ruled 7-2 in favour of the students and stated that the students should be allowed to exercise their right of the First Amendment. The Court also ruled that from then on that public schools and school officials could not stop students from expressing themselves, as long as it did not disrupt the educational process[footnoteRef:5]. [5: https://www.aclu.org/other/tinker-v-des-moines-landmark-supreme-court-ruling-behalf-student-expression]
Freedom of expression is also an important topic in the European Union, with the right to freedom of expression being a very important topic especially after recent events. Article 10 of the European Convention on Human Rights (ECHR) deals with freedom expression and stats that people shall be free “to hold opinions and to receive and impart of information and ideas without interference by public authority and regardless of frontiers”[footnoteRef:6]. It also states that the exercise of these freedoms are subject to certain formalities. The first time that the European Court of Human Rights had to deal with a case related to Article 10 came in 1960 in the case of De Becker vs Belgium[footnoteRef:7], after De Becker, after being found guilty of treason was handed a life sentence which was then turned into a prison sentence. However, soon after, De Becker was released subject to certain conditions, which included the limitations of certain rights such as the right to freedom of expression. This was something that had never been heard of before, and something that nowadays would prove to be of great controversy. A case like this had never been heard of at that time, and as a result this case was never given the importance that it required. The Commission never tackled the case properly and never gave the case the correct importance to that fact that it was a judicial decision that was interfering with the rights of the individual. [6: European Convention on Human Rights ] [7: https://www.legal-tools.org/en/browse/record/49edbf/ Becker Vs Belgium ]
I would like to again bring into question my question of whether freedom of expression is actually a living concept. I believe that it is impossible for one to state that freedom of expression is actually a concept when one looks at recent events such as the murder of Slovakian journalist Ján Kuciak and his girlfriend Martina Kusnirova. Kuciak had been investigation alleged political corruption in his country that was linked to Italian organised crime at the time[footnoteRef:8]. Another shocking case I would like to mention here is that of the Paris Attacks in 2015. On the 7th January 2015, brothers Saïd and Chérif Kouachi entered the offices of the French magazine ‘Charlie Hebdo’ and shot 12 people, injuring 11, after Muslims were offended by a previous publication that had been published by the magazine company, featuring a caricature of the Prophet Mohammad. The backlash from this attack was immense and publication companies around the world came together in order to condemn the attackers and stand behind the victim, with newspaper such as ‘Le Parisien’ whose front page headline the next day read “They shall not kill freedom”, while ‘Le Figaro’ ran the headline of “Liberty assassinated”[footnoteRef:9]. This case was a shock to the world, presenting the question, is freedom of expression still a freedom a right that should be enjoyed by all, or is it something that should be feared? [8: https://www.bbc.com/news/world-europe-45684062] [9: https://www.bbc.com/news/live/world-europe-30710777]
Another modern case regarding the diminishing of the right of freedom of expression is the attack on journalists in India in the last few years, with 142 journalist being killed in 2014 and 2015, and a further 54 being attacked during 2016 and the first quarter of 2017, placing India in the 136th position in ‘The World Press Freedom Index’ published by ‘Reporters Without Borders’. These attacks on journalists are not the only problems in India, but news censorship is another large problem in hand. Not only are these attacks on journalists something to worry about, so is the fact that the state wields a strict baton when it comes to the publishing of news that may not be to their liking and approval. This can be seen in the case of the channel ‘Sakshi TV’ which recently discovered that their coverage of the ‘Kapu’ agitation led to their channel being blocked in certain states.[footnoteRef:10] This led to citizens become ill-informed about what is happened. Another more modern and recent aspect of freedom of expression that has come into question is that of freedom of expression through social media.This issue has been tackled differently by different countries and a very interesting a recent case is that of the state of freedom of expression on social media in Africa. As a result of protestors using social media as a main tool and method of removing dictators from power during the Arab Spring, governments in Africa are adopting a new and interesting tactic in order to curtail their influence, the taxing of social media usage. African leaders have said that these taxes are being imposed in order to shore up government revenue, many people believe that these taxes are “merely censorships clocked in an economic argument”[footnoteRef:11]. Aware of the threats that are posed on them through social media, African regimes have used various methods to stifle internet based mobilisation, such as internet shutdowns, social media shutdowns, website takedowns and the detention of online critics. [10: https://thewire.in/politics/for-india-a-year-of-shrinking-liberty] [11: https://www.cfr.org/blog/africa-new-tactic-suppress-online-speech-taxing-social-media]
Another very important article regarding freedom of expression is that of Article 19 of the International Covenant on Civil and Political Rights issued by the United Nations on the 23rd March 1976. The contents of this article are very similar to that of the contents of Article 10 of the European Convention on Human Rights. The article states that everyone shall have the freedom to hold his or her opinions without any interference, along with the right 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”. Importance should be given to sub-article 3 of this article which states that with the exercising of such rights there comes a number of duties and responsibilities. This means that the freedom given to people is confined by certain restrictions, mainly being, the respect towards the rights or reputations of others and for the protection of national security or public order. This therefore shows how the concept of freedom of expression is not totally fully free[footnoteRef:12]. [12: International Covenant on Civil and Political Rights]
When we look at freedom of expression on a local level besides the definition given to us in Article 49 of the Constitution of Malta, we also have the Media and Defamation Act of 2018. The Media and Defamation Act of 2018 was enacted on the 24th April 2018 and replaced the Press Act, Chapter 248 of the Laws of Malta. With the establishment of these new act there came the establishment of a new legal framework for media law, libel, defamation and slander under Maltese law. This law gives a whole new spectrum to freedom of speech when it comes to journalism. Furthermore, the Maltese authorities say that in addition as a result of this law there is the avoidance of “disproportionate restrictions on journalists” when it comes to libel. It established a ceiling amount of 11,640 Euros for court compensation damages. It also increased the number of alternative means of dispute resolution[footnoteRef:13]. [13: http://iurismalta.com/media-defamation-act-2018/]
This new law that has now decriminalised libel in Malta comes as result of months of criticism over media freedom, especially after the murder of the journalist Daphne Caruana Galizia in 2017. Daphne Caruana Galizia was a very well known figure in Malta as a result of her work to help bring down corruption and publicly shame those who where corrupt. Although many people disagreed with her work and shamed her for ruing the lives of the people she exposed, in my opinion her murder is something which can never be excused. The murder of Daphne was described as one of the worst and most gruesome murders in the history of the island and until this day a number of protest are held in order to help with justice to this injustice. This case also brought a large number of international attention to Malta, with many saying the reputation of the country has been damage as a result of this.
As it can be seen, over the years the topic of freedom of speech has become a very important and prevalent topic in society and over the years it has gone through drastic changes to obtain the importance that it poses today. Although it is true and it can be seen that over the years there has been a large shift in favour of the freedom of expression, after the recent murders of Maltese journalist Daphne Caruana Galizia and Slovakian journalist Ján Kuciak it is evident that much more needs to be done in order to ensure the protection and safeguarding of this right.