Why is freedom of expression particularly important?
April 6, 2015
Noriho URABE (Adviser, Japan Institute of Constitutional Law)
Freedom of expression is often said to be particularly important among human rights. It protects free expression of speech, publication and other forms. And it is an essential part of freedom of thought, together with internal freedom. We do not mean to say that many other freedoms and rights are not as important as those. All the other rights are very important as well. If you wonder what the most important human right is, that depends on the conditions in which you live. If "the minimum standards of wholesome and cultured living" are not maintained, the right to live is what you critically need. If you run a business on which you live, you may need freedom of trade first. When you live near military bases, where your daily lives are threatened by the presence of military troops and danger of war, you surely crave for the right to live in peace without such fear. In other words, it is unwise to rank human rights and say, "This is the most important, followed by that one."
Nevertheless, we persistently emphasize the importance of freedom of expression. Why do we have to? Because it is most easily violated by the authorities. Indeed, governments occasionally restrict it without a fair reason, despite that they can never justify their democratic power without freely expressed support by the people. Furthermore, it can be easier to control people by allowing them to express criticism and opposition to a certain extent. In other words, speeches and publications can work as safety valves which reduce the pressure of people's dissatisfaction and prevent violence and a revolution. Those in power need people's expression for their stability. However, they might want to check it, because speeches and other forms of expression may grow out of control and encourage anti-government movements which can destroy public order and the system of existing power. Therefore, governments often carefully try to trim off certain kinds of speeches and some forms of expression which might turn destructive, while they can, before they grow really dangerous. If the government honestly declares that it censors and limits speeches and expression for its safety, that ruins the legitimacy or democratic foundation of itself. People in power have to fabricate reasons for oppression, and announce that "it was done in order to maintain traffic safety, the scenary and landscape, public order and standards of decency" and whatever. If you examine each case of governmental interference of freedom of expression, you possibly find that the real purpose is to oppress what disturbs the government, even if it states other specious intentions or reasons.
If the governments sincererly want to block actions that really harm other people, for the purposes that the Constitution allows, it is difficult to legislate that in just right degree, neither too widely nor too narrowly. When they control expression, trade or any other actions, it is not easy to legislate such limits clearly. As a result, executive organs such as the police and the central and local government offices must decide on each case and work at their discretion. Once the authorities have the freedom, they might enforce the law to ban expressions that disturb the power. Then, people will try to avoid troubles, and become reluctant to speak against the government. That is called "chilling effect."
For the above reasons, we should be aware that freedom of expression tends to be treated badly by the authorities. A classic theory called "superior status of freedom of expression" means to highlight it and warn that constitutionality should be examined with utmost care and prudence, in case freedom of expression is controlled. For reviewing the importance of freedom of expression, let me list the reasons why it has to be protected.
First of all, we want to say what we want to. That is human nature. We feel terrible when we are not allowed to speak. John Milton's book "Areopagitica" shows that in his speech, as early as in 1644, he remarked that restrictions on publication "s the greatest displeasure and indignity to a free and knowing spirit that can be put upon him." We can mentally grow by expressing ourselves and listening to others. Therefore, freedom of expression is necessary for our existence, to maintain our mental and spiritual soundness and our dignity as human beings.
Secondly, sometimes we may make mistakes and believe that our idea is the best and any others are wrong. In such occasions, somebody else may give us advice and correct our mistakes. Free discussion is necessary to lead each person and the whole society to make better choices and right decisions. The government and the society may take a wrong way without free expression. To lose free expression means to lose measures to check.
Thirdly, freedom of speech is one of the indispensable foundations of democracy. The political system called democracy, based on the principle that sovereignty resides in the people, means that policy is made by the people through discussions. Democracy never functions without free expression and discussions, especially about political issues. In conclusion, I believe that the core of the freedom of expression provided in our Constitution is free discussion about policy and free expression of political opinions.