freedom of speech in singapore essay

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Freedom of Speech in Singapore: What Does It Entail?

Ming En Liew and Kellynn Wee

• 25 Feb 2021

Under Article 19 of the United Nations’ Universal Declaration of Human Rights, “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Succinctly, Article 19 details that everyone has the right to freedom of speech.

But this concept has become a contested one in Singapore in recent years. Predominantly, the narrative has been that Singapore cannot be considered a democratic society due to the country’s restrictions on the freedom of speech.

Singaporean novelist and political commentator, Catherine Lim , had said of Singapore, “A democratic society is one that allows for opinions to be debated freely. Corporations and individuals should not feel criminalised for speaking against the government. However, when you consider the control that the government has over political associations, the Law Society and the use of political tools such as lawsuits against individuals with a different opinion, we cannot say our society is truly democratic.”

Many examples appear to support this narrative, such as the clampdowns on peaceful demonstrations calling for greater support for transgender students in Singapore institutions, the usage of the Protection from Online Falsehoods and Manipulation Act (POFMA), and Singapore’s dismal ranking on the World Press Freedom Index (158 out of 180 countries, below countries like Russia and Myanmar).

But why does this matter? Why is it important to allow citizens freedom of speech? Our writers Kellynn and Ming En weigh in.

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1. What does freedom of speech mean to you? 

KELLYNN: For me, freedom of speech indicates the right for citizens to express their opinions without fear of reprisal. I’ll also add that there’s a distinction between freedom of speech and hate speech, which is speech that incites ill will, violence or discrimination on the basis of specific aspects of social identity (e.g. gender, sexuality, nationality, ethnicity, etc).

Jon Ronson wrote a book about this topic, titled, So You’ve Been Publicly Shamed. It was about the people who have been pilloried on Twitter for insensitive tweets, chronicling the repercussions that have echoed through their lives, such as their difficulties in finding jobs or dates.

Ronson argues that people are disproportionately punished for what they say online, but I’m not so sure. Popular blogger Xiaxue came under fire for making racist and transphobic comments, but has legally pressured her main accusers into silence and retraction. She also continues to enjoy a significant platform. And male celebrities in Hollywood who have faced sexual assault allegations continue to be hired and featured in our entertainment landscape.

Any understanding of the entitlement of particular people to say particular things must also be connected with the distribution of power in society. What happens online is one facet of our discussions on freedom of speech, but it is the relationship of the citizen to the state that I’m more interested in. Xiaxue might have lost sponsorships, but she hasn’t been arrested, jailed, or fined for what she’s said – the way that people like activist Jolovan Wham has.

MING EN: While I generally do agree with Kellynn’s definition of freedom of speech, I also believe that freedom of speech has to happen within certain boundaries and parameters, as ironic as that may sound.

I’m of the mind that what individuals say should not be censored or controlled (hate speech aside), but how and where they say it should be to some extent. Proper avenues of discussions should be set up for individuals, especially those of minority groups, to voice their concerns and be heard.

Of course, how these boundaries are to be drawn and who should have a say in setting these boundaries are all points of discussion that need to happen between the state and its people.

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2. What do you think about Singapore’s current measures with regards to the freedom of assembly? (i.e. Rallies can only be held at the Speaker’s Corner with a permit) 

KELLYNN: I suppose free speech and freedom of assembly are related, though not the same thing.

Freedom of assembly in Singapore is an odd thing: a single-person demonstration, such as was organised by Seelan Palay in 2017 (who held up a mirror in front of Parliament House as a performance art piece), can be cause for arrest and/or imprisonment. And I learnt, from Kent Ridge: An Untold Story edited by Kelvin Y.L. Tan, that the National University of Singapore was built without any open spaces in order to suppress potential student demonstrations, so it goes beyond applications to protest at Hong Lim Park.

That we have to apply for permission to assemble peacefully is unusual, to say the least. Pink Dot has made it work, but that has taken mammoth effort and hard work, and the organisers have faced extensive restrictions and measures of surveillance despite the fact that Pink Dot is a well-oiled and very amiable machine at this point.

And the limits of peaceful assembly are shown with the #FixSchoolsNotStudents protest , which was a short-lived demonstration of five individuals standing outside the Ministry of Education holding placards to draw attention to how LGBTQ students have been failed by the school system.

When asked why they hadn’t used other avenues to register their discontent, the protestors responded that other avenues had not been successful. And it is true that the avenues available for political participation in Singapore are limited. The preferred style, from what I understand, is that of consultation with government bodies, the establishment of committees, and the reframing of broader issues of social inequity and inequality as that of isolated problems to be fixed.

While this is also a valid way for citizens to participate in political processes, it cannot be the only option available to campaign for change, because it doesn’t always work. It gives too much power to state institutions to set the limits of what citizens should or should not be concerned about.

MING EN: Freedom of assembly, while related to the freedom of speech, also comes with its own set of nuances and concerns.

While I acknowledge that Singapore’s laws regarding the freedom of assembly may be excessive, I can also understand why authorities opt to err on the side of caution. On the surface, peaceful demonstrations do no harm. However, this can still become a cause for concern if demonstrations end up disrupting the lives of Singaporeans.

On a smaller scale, this can be in the form of simple things like traffic disruptions, but it also has the potential to extend to business operations that are vital to the economy. By restricting protests to one area in Singapore, the Government is able to minimise potential disruptions that can have larger implications on the economy.

Singapore has always prided itself for its stable governance and political landscape, and this factor has drawn foreign investors into our country, boosting our economy. To relax our restrictions on the freedom of assembly would also mean putting this stability at risk.

That’s not to say that nothing needs to change. I believe that any change we make needs to be calibrated and measured.

More avenues do need to be provided for the public to have their voices heard, especially that of minority groups who may struggle to get visibility without being able to assemble, but following the models of other countries may not necessarily be in our best interest. It is up to us to decide on where we want this line to be drawn, to maintain the harmony in our society, while still ensuring that no voice is left unheard.

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3. How does social media play a role in allowing individuals to make their voices heard?

KELLYNN: I think platforms like Instagram have been critical in the communication and distribution of knowledge, as well as in mobilising politically. And people are very sophisticated in how they communicate their knowledge online: It’s not just about content, which is important in awareness-raising, but how it is tailored for shareability, aesthetic attraction, and emotional appeal.

This is so crucial because we’re parsing so much information when we scroll through a feed, so the ability to make someone stop, sit down, and read something that might be difficult or unsettling or challenging to one’s worldview takes significant skill.

The conversations on Twitter are fractal, not linear – they go everywhere and it’s impossible to guide them the way you want them to go. It’s basically the opposite of a feedback session, where moderators and speakers are able to dictate the flow of conversation and only one conversation is had at once. Twitter is like overhearing six strangers’ conversations at once, and you’ll get interactions between citizens and people in power that you wouldn’t elsewhere or otherwise.

We’ve seen the power of social media in recent outcries against the potential redevelopment of Clementi Forest and Dover Forest, both of which had led to the government making statements of clarification and extending the duration of public feedback respectively.

Social media has also been pivotal in allowing for contrarian voices that might otherwise not be heard. It has also seen a rising trend of youths gaining interest and taking part in conversations surrounding social issues.

Even so, the proliferation of social media has brought with it its own set of dangers, such as the spread of misinformation and falsehoods. In response, the Singapore government has implemented POFMA.

While POFMA has received much critique for being overarching and potentially restricting free debate, the essence of the policy is sound –misinformation does indeed have the potential to fester and sow unrest, and needs to be addressed. The problem therein lies in the broad and overarching reach that POFMA allows for, which has been criticised for being a weapon hindering the freedom of speech here in Singapore.

Ultimately, the spread of misinformation online does need to be controlled, whether in the form of POFMA or other initiatives. How that is done is a complex matter that will involve the cooperation of multiple stakeholders, but it is my belief that freedom of speech should not mean the freedom to spread falsehoods or mislead without consequence.

While I am by no means a politician or lawyer, perhaps POFMA will be best-served if its wording was clarified to clearly state the instances in which it can be used to intervene.

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4. What are some changes you would like to see in Singapore with regards to the freedom of speech? 

KELLYNN: Singapore has done a sterling job in educating its citizens, but there should also be room to empower them. I’ve met so many people and activists who are thoughtful, critical individuals profoundly invested in the future of the country, and it’s often frustrating to see their concerns dismissed by politicians and policymakers, who are eager to set the terms of any kind of debate.

I think that Singaporeans can be trusted to think and talk aloud, without upsetting the peace. The bigger question is whose peace are we upsetting? Who gets to define this sense of peace? What gets hidden or silenced to maintain an apparent sense of order? Should we at least have the freedom to talk about it?

MING EN: While I largely concur that there should be more room for individual’s voices to be empowered in Singapore, I think that some of these terms and restrictions are necessary. How much of it we should ease, and to what extent freedom of speech should be allowed – these are all questions I do not have definitive answers to.

I lie on the conservative end of the spectrum, and believe that Singapore has managed to build a (relatively) peaceful and stable society because of the unrelenting control of the government.

Still, Singapore is a far cry from what it was in the past, and I agree with Kellynn that a vast majority of our citizens are informed, educated, and capable of holding discussions and debates in a reasonable manner.

And while Singaporeans should have more autonomy and freedom to speak out about issues, even those that might be deemed controversial, I stand by my point that these changes need to happen with the utmost care and consideration, and I would prefer to err on the side of caution.

Join the conversations on THG’s  Facebook  and  Instagram , and get the latest updates via  Telegram .

• Tags: Community , Local , Opinion , Singapore

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Justifying Limitations on the Freedom of Expression

• Open access
• Published: 01 November 2020
• Volume 22 , pages 91–108, ( 2021 )

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• Gehan Gunatilleke   ORCID: orcid.org/0000-0002-8670-8602 1 , 2  

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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

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Introduction

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.

One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.

The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

The Value of the Freedom of Expression

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).

Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.

The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.

On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).

The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.

The Proportionality Test

Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.

In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.

A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto   sensu  ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).

Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).

A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.

At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.

This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).

At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.

The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.

A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.

First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.

Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto   sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.

The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.

The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).

Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.

Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.

A Duty-Based Justificatory Approach

The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.

Duties of Justice

The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).

Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.

What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.

Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.

A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.

The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.

A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.

A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.

An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.

A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.

Is the Language of Duties Dangerous?

The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).

Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.

Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.

In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.

Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.

There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.

Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)

‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

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Acknowledgements

The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.

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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

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Mission Update

Statement by the permanent mission of singapore during the interactive dialogue with the un special rapporteur on the promotion and protection of the right to freedom of opinion and expression, human rights council, 2 july 2021.

05 Jul 2021

STATEMENT BY THE PERMANENT MISSION OF SINGAPORE DURING THE INTERACTIVE DIALOGUE WITH THE UN SPECIAL RAPPORTEUR ON THE PROMOTION AND PROTECTION OF THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION, HUMAN RIGHTS COUNCIL, 2 JULY 2021

Mdm President,

Singapore thanks the Special Rapporteur (SR) for her Report on this very important subject and takes note of its content. The SR’s Report contains false assertions, and Singapore must take the floor to address the misrepresentations .

In relation to recent laws on fake news, the SR asserts that “unfettered discretion has been given to executive authorities without judicial oversight in some legislation, notably in Malaysia and Singapore, opening the possibility for abuse and arbitrary decision-making ”. We deeply regret that the SR has failed to conduct due diligence on basic facts regarding Singapore’s “Protection from Online Falsehoods and Manipulation Act” (POFMA). This is particularly since Singapore had provided extensive clarifications on this Act, including specifically addressing the matter of judicial oversight, to the former SR David Kaye in July 2019. It is unfortunate that the SR does not appear to be aware of the correspondence between my Government and her predecessor, nor has she received accurate information about this law.   

The clarifications my Government provided to Mr Kaye in July 2019 included the following:

• Second, judicial review of a Minister’s direction remains available. This means the courts can review the direction as a whole, on established administrative law principles.

In fact, a cursory check would show that a number of POFMA directions have been reviewed, and are currently being reviewed, by the Courts. There is no basis at all to characterise executive action under POFMA as being “unfettered” or “without judicial oversight”. 

The SR has also taken issue with how POFMA defines a “false statement of fact”. This phrase is a legal term that was drawn from long-standing, existing law. It is not new. The SR may wish to refer to our Courts’ published judgments, on how they have applied this definition under POFMA.

I would additionally highlight that POFMA tackles falsehoods in a calibrated way. POFMA primarily relies on Correction Directions, which simply requires corrections to be tagged to the article containing falsehoods. This is similar to the approach that the technology companies have taken in recent times to address misinformation spread on their platforms. Checks would show that Correction Directions add to the conversation. Correction Directions do not silence anyone. The Correction Directions do not require removal of the statement , and are not sanctions. It simply requires that the public have access to both the false statement and the correction so that the public may draw their own conclusions. In this way, the democratic process is aided, because the antidote to falsehoods is more speech and accurate information. If the SR so wishes, my Mission will be happy to send her office more information on POFMA.

The freedom of expression is a fundamental liberty guaranteed under Singapore’s Constitution, in line with international standards. As the SR recognises in her report, this right is not unqualified under the applicable international human rights law and may be subject to certain restrictions.

Singapore wholeheartedly agrees with the SR that disinformation is a “complex, multifaceted phenomenon with serious consequences” and that it destroys people’s trust in democratic institutions. Societies internationally are grappling with the real and serious threat that disinformation poses, and many are considering the appropriate measures – both legislative and non-legislative - to tackle disinformation. Singapore too has taken efforts to ensure that we have the tools to effectively counter this serious threat. POFMA is an important part of Singapore’s multi-pronged approach to combating online falsehoods, which includes public communications and education to nurture a well-informed and discerning citizenry. It was drafted after an extensive process of study and public debate, including with Singapore’s civil society.

Singapore’s approach may not conform to certain ideological preferences, but our laws are ours to make, as it is the interests of our democratic society which are at stake.

.     .     .     .     .

The Ministry of Foreign Affairs is a ministry of the Government of Singapore responsible for conducting and managing diplomatic relations between Singapore and other countries and regions.

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On Freedom of Expression and Civil Liberties in Singapore

Jolovan Wham is getting very familiar with the inside of police stations and courtrooms. The Singaporean activist currently has multiple cases pending against him, ranging from investigations up to convictions and sentencing. His offences, alleged or otherwise, include organising illegal assemblies, vandalism, refusing to sign statements to the police, and scandalising the judiciary. He is, according the Singapore Police Force, to be described as “recalcitrant”.

Wham’s current experiences are visible manifestations of an observed tightening of control by the People’s Action Party government, particularly at a time of political transition, where wild cards like a family feud on social media have hinted at splits within Singapore’s elite establishment circle.

Singapore’s political context

While Singapore has impressed the world with its economic achievements over the decades, there’s much to be desired when it comes to questions of political rights and civil liberties. It’s essentially a one-party state; the People’s Action Party, or PAP, were voted into power on 1959, and have won every election since. Today, there are only nine opposition Members of Parliament in a 100-seat House.

This background is important to keep in mind, not because I’m trying to argue a case for or against the PAP’s hold on power, but because this is the political context against which generations of Singaporean lives have unfolded. Singaporeans below the age of 60 will have no memory of a time when the “ men in white ”—a well-known term for the PAP, whose members don white uniforms during election time—have not been dominant on the island. For these generations of Singaporeans, the PAP is the government, and the government is PAP. We have known no other political reality in our country.

This dominance has allowed the PAP the power to craft narratives and national myths—perpetuated through multiple channels, from the education system to the mainstream media—which shape the political imagination of the people and guide the direction in which the country develops.

For example, the PAP often portrays issues as a “trade-off” between economic growth and security, and human and political rights. Singapore’s curbs on civil liberties are portrayed as being part of a “social contract” between the people and the state: as the narrative goes, Singaporeans have willingly allowed restrictions on our fundamental freedoms in exchange for clean streets and an attractive-looking GDP.

Freedom of expression in Singapore

The restriction of freedom of expression in Singapore is not a recent problem. It can be traced back decades: to laws, such as the Newspaper and Printing Presses Act, that brought the mainstream media to heel, and to defamation suits that high-ranking members of the PAP filed against news publications (such as the Far Eastern Economic Review or the International Herald Tribune ) and political opponents (such as the late opposition politician J B Jeyaretnam and current secretary-general of the Singapore Democratic Party Chee Soon Juan ). More recently, ordinary citizens have also found themselves on the receiving end of such defamation suits: Prime Minister Lee Hsien Loong successfully sued blogger Roy Ngerng, and is currently suing financial advisor Leong Sze Hian for sharing an article on Facebook.

Such high-profile examples of clampdowns on free speech and press freedom become part of the Singaporean consciousness. Journalists in mainstream media newsrooms get used to dealing with calls from government ministries, and some even embrace that fact that they produce propaganda. Self-censorship is rife in Singapore, not just within the media industry, but also among public servants, academics , and ordinary citizens. This culture of self-censorship and fear is widely acknowledged, mentioned not only in (usually foreign) media reporting, but also in plays like Tan Tarn How’s Fear of Writing and Press Gang .

The lack of space for dissenting viewpoints in the traditional mainstream media gives the Internet extra significance when it comes to political discourse and discussion. Where, in some other countries, the Internet and social media might have simply offered increased convenience in disseminating a range of views, in Singapore, the online sphere is the practically the only space that exists for wider political talk that isn’t automatically dominated by the PAP. Over the years, citizen journalists and bloggers, such as those at The Online Citizen , have also reported on, or opened up discussions of, un- or under-reported issues in the mainstream media.

The PAP government had previously said that they would regulate the Internet with a “ light touch ”, but bloggers and online journalists have taken issue with moves such as a licensing regime introduced in 2013 that required particular websites to register for a licence with the Media Development Authority (since reorganised into the Infocomm Media Development Authority). These websites are expected to put down a performance bond of S$50,000 (32,716€) and commit to removing objectionable content within 24 hours.

The Online Citizen, currently Singapore’s longest-running independent news website, has endured a series of government actions that have stifled its growth and development. In 2011, the website was gazetted by the Prime Minister’s Office as a “political association”, which meant that it was required to adhere to political donation laws that banned it from receiving funding from foreign sources and limited the amount of anonymous donations it could receive every year. It was removed from the list of political associations in 2018, then registered with the IMDA under conditions that continue to block the site from receiving any foreign funding.

Over the past decade, more independent media outlets have sprung up online. But starting up has proven to be easier than sustainability; multiple outlets—such as Inconvenient Questions, SIX-SIX, and The Middle Ground—have folded over the years due to the lack of funding. With little in the way of local philanthropy for independent media ventures, regulatory restrictions (or perceived social taboos) against foreign sources of funding (including grants from foundations), and the lack of a culture in Singapore of paying for online news, those who have made forays into the Singaporean independent media scene have struggled to balance the books and stay in the black. Those who appear to be thriving, such as Mothership.sg, count government agencies among its long-term advertising partners; an arrangement that would be impossible for more critical outlets.

More recent developments

While freedom of expression has been a long-term issue for Singapore's political and civil society scene, recent developments have led many to observe that there has been a tightening of control by the PAP government, particularly following the general election in 2015, where the party was returned to power in a position of strength with almost 70 per cent of the vote.

There have been reports of academics being blacklisted and shut out of employment in academia in Singapore. Public cases include journalism professor Cherian George , who lost his position at the Nanyang Technological University in 2013 after being denied tenure for the second time, artist and assistant professor Lucy Davis , whose Employment Pass was not renewed three years after she lost her permanent residency status, and historian Thum Ping Tjin , who has since been subject to smear campaigns by members of the PAP.

Multiple Singaporean activists have been called in for investigations into “illegal assemblies”, although none of these gatherings caused any public disturbance. Some of these investigations have led to confiscations of mobile phones and laptops. Most investigations were eventually concluded with written warnings from the police, but cases like artist Seelan Palay and solo protester Yan Jun shows the authorities’ willingness to use public order laws even against individuals acting alone.

Out of three “illegal assemblies” investigated—an indoor forum on civil disobedience and social movements, a silent protest on an MRT train, and a candlelight vigil for an imminent execution— only Jolovan Wham was charged . He was also charged for refusing to sign his statement to the police in all three of these investigations; he has said that, as a principle, he would prefer not to sign documents that he cannot get a copy of. Another charge of vandalism was added because Wham had allegedly put up two signs printed on A4 paper in the MRT carriage during the silent protest. (While there is no caning for the first conviction of vandalism, Wham could be in danger of judicial corporal punishment should he ever be charged with the offence again.)

Wham is also the first to be charged and convicted of scandalising the judiciary under Singapore’s Administration of Justice (Protection) Act, alongside Singapore Democratic Party political John Tan. Wham had commented on a Facebook post that he found Malaysian judges to be more independent than Singaporean ones when it comes to political cases. After the Attorney-General’s Chambers commenced proceedings against Wham, Tan had commented that their action had merely proved Wham right—this, as it turned out, was also enough to get Tan in hot water. The two are currently awaiting sentencing from the High Court.

The Online Citizen, who has been singled out numerous times over the years by various PAP members, is once again in the line of fire, as chief editor Terry Xu has been charged with criminal defamation for the publication of a readers’ letter that made reference to “multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons”. The author of the letter, Daniel de Costa, has also been charged.

Also pending are contempt of court proceedings against Li Shengwu , nephew of Prime Minister Lee Hsien Loong. Li’s father, Lee Hsien Yang, and his aunt, Lee Wei Ling, are currently locked in a bitter feud with their elder brother, who they have accused of misusing his power . Li had published a “friends only” post on Facebook in which he mentioned that “the Singapore Government is very litigious and has a pliant court system”.

Further threats to freedom of expression: Singapore’s “fake news” bill

The latest piece of legislation with severe implications for freedom of expression in Singapore is the Protection from Online Falsehoods and Manipulation Bill (POFMA), tabled on 1 April 2019. It is expected to have its second and third reading in Parliament in May.

POFMA is a piece of legislation that has been two years in the making, and is ostensibly about allowing Singapore to combat “fake news” and misinformation campaigns. However, rights groups , press freedom organisations , and businesses alike have pointed to ambiguous wording in the bill, and the fact that it would grant the government sweeping powers to determine what is “fake” and dictate the “truth”.

Under POFMA, any government minister would be able to order correction notices, the removal of content, and the blocking of access to content online. Failure to comply with such orders could result in heavy fines and long jail sentences. Although the bill does allow for appeals to the High Court, these potentially costly appeals can only be made after one has applied to the minister in question for review. In any case, compliance with the order is required from the outset.

The bill also proposes that ministers can make a website or page a “declared online location” as long as it has had three orders against it within the past six months. Once so declared, a website would not be able to generate revenue, whether through ads, subscriptions, or donations. Such a provision, if the bill is passed, could be the death knell for a struggling website like The Online Citizen.

Why is the PAP government cracking down on freedom of expression?

While there has been no official reason for the crackdown—and it’s unlikely there’ll be one any time soon, as the PAP government would probably not even acknowledge that there is a crackdown—there have been theories that this tightening of control is connected to the ongoing leadership transition within the party. Prime Minister Lee Hsien Loong has said that he intends to step down from the premiership shortly after the next general election, due to be called by 2021 (but widely expected to be called earlier). Current Minister of Finance Heng Swee Keat is seen as the anointed successor following his appointment as first assistant secretary-general of the PAP in the last party election.

On top of this, observers are also pointing to “ signs of disaffection ” even among those who would usually be considered part of the establishment elite. Most obvious, of course, is the extremely high-profile Lee family feud that grabbed headlines internationally in 2017. Criticism and allegations that come from the prime minister’s own siblings attract more attention and are harder to brush aside than flak from activists and opposition politicians. Although the feud has largely retreated from the media spotlight, Lee Hsien Yang has openly backed former PAP Member of Parliament, Tan Cheng Bock, who has since set up his own political party with an eye on contesting the upcoming election. When Lee Hsien Loong sued financial advisor Leong Sze Hian for defamation, his younger brother donated a “ meaningful sum ” to Leong’s legal fund.

The broader Southeast Asian context

Singapore’s “fake news” bill and crackdown on freedom of expression comes at a time when press freedom and civil liberties are under assault in the region. From the sustained harassment of journalist Maria Ressa and Rappler in the Philippines to blasphemy convictions in Indonesia, press freedom and freedom of expression are consistently under attack in Southeast Asia.

Apart from Singapore, other Southeast Asian countries such as Cambodia and Vietnam have also introduced cyberlaws that seek to extend government control into relatively free-wheeling social media spaces. There are concerns that Singapore’s POFMA, once passed and implemented, could end up being inspiration for other authoritarian governments seeking to pass legislation that would give them power over public discourse.

It’s a difficult time for civil liberties and human rights activists right now, not only in Singapore, but in many other parts of this region. Unfortunately, the concerns of the broader public are often fixated on “bread and butter” issues such as the cost of living, income, and housing. While understandable, this focus obscures the importance of such fundamental rights to a functioning democracy in which people are able to live and air their views with dignity and without fear.

What we have to brace ourselves for, then, is a long journey ahead. During this time, activist efforts might bear little visible signs of success, but cannot be underestimated or done away with, for the political education and the learning in the doing is in itself crucial to progress.

• Jolovan Wham
• Southeast Asia
• freedom of expression

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© Heinrich-Böll-Stiftung e.V. Schumannstraße 8 10117 Berlin T +49 (30) 285 34-0 F +49 (30) 285 34-109 www.boell.de [email protected]

Right to Not Be Offended vs Free Speech

Free Speech

Article 14 of the Singapore Constitution guarantees the right to freedom of speech and expression in Singapore for Singaporeans. However, this right is not unfettered as the Singapore Parliament may legislate:

• To protect the privileges of Parliament;
• To provide against any contempt of court, defamation or incitement to any offence;  or
• Where it considers necessary or expedient in the interest of Singapore’s security, diplomatic relations with other countries, public order or morality.

For instance, section 298 of the Penal Code stipulates that it is an offence to utter a word within hearing distance of a person, with the deliberate intention to wound that person’s religious or racial feelings. Arguably, this restriction is necessary in the interest of Singapore’s public order due to the need to uphold racial and religious harmony in the country .

Although the right to free speech is guaranteed for Singaporeans, it is more of a principle than a rule. This means that it must be balanced with other principles including national security, public order and morality.

Right to Not be Offended?

Currently, the right to not be offended does not exist in any legislation or constitution. However, the limits to free speech has given rise to situations where we seem to be protecting the feelings of others. By a simple extrapolation, more people are starting to claim and rely on the right to not be offended to resist the free speech of others.

In Washington, US, a school superintendent refused to allow the school’s woodwind ensemble to play “Ave Maria” at their graduation ceremony because she believed the piece to be religious in nature. Even though the student musicians proposed to play the music instrumentally and that the superintendent did not know that “Ave Maria” is Latin for “Hail Mary”, the Court agreed that the school acted reasonably in trying to avoid offending anyone. From the Court’s perspective, the school authorities could limit the students’ right to free speech to prevent those attending graduation from being offended.

Can the right to not be offended be sustained?

Yet, by sanitising the schools of any and all religious content, it is not simply a matter of silencing those who are religious but also an annihilation of the cultural landscape for the entire student population. So much of art, music and literature was inspired by religion or at least influenced by religion. Should we also then forbid our art students from studying Michaelangelo’s Sistine Chapel because it has religious content?

Beyond the specific subject matter of religion, the right to not be offended would undermine the fundamental freedom of speech. With the issues of art, religion, politics and even food, there are bound to be different opinions and interpretations. Invariably, when opinions clash, someone is likely to take offense at what someone else says or does. There can be no single unifying opinion unless we are coerced to a place where political correctness triumphs in the name of the right to not be offended.

Disagreement in the public discourse is a means for new meaning to emerge and for rationality and language to evolve. When asked why his right to freedom of speech should trump a person’s right not to be offended, Dr Jordan Peterson (a clinical psychologist and public speaker) replied that you have to “risk being offensive” to be able to think. 

Imagine a world where we could not disagree and that we could only debate on things that we already agree on. The term “debate” would cease to have any meaning and our identities as rational beings would be whittled away.

Can we learn to develop the art of civility, i.e., the art of trying to work through to an agreement rather than take offense when we disagree? See this video to learn more.

Singapore Context

Authorities in Singapore intervened to condemn a vulgar rap video (Prettipls) in which two Indian rappers slammed those of the Chinese ethnicity. This rap video was posted in response to a controversial ‘brownfacing’ advertisement where a Chinese actor had darkened his skin to portray an Indian character and put on a headscarf to portray a Muslim Malay woman.

The Singaporean police stated that they will not “tolerate any offensive content that causes ill will between races”. Shanmugam, the Minister for Law and Home affairs, emphasised the importance of racial harmony and of ensuring that all the races and minorities feel safe. 

While free speech is not about sanctioning a form of self-expression that deliberately seeks to offend others, there must be a sufficient forum for debates to take place where people are prepared to take offense in a bid to contribute to public discourse. While we discuss the ramifications of the vulgar rap video, are we also prepared to debate about the controversial advertisement which started the furore in the first place?

  Questions for further personal evaluation: 

• How would you have debated the issue of race relations regarding the controversial advertisement? Do you think the vulgar rap video crossed the line of free speech?
• What is the value of free speech and why must it be balanced by other values or  principles?

Useful vocabulary: 

• ‘ extrapolation’ : predict by projecting past experience or known data
• ‘ discourse ’: verbal interchange of ideas

Here are more related articles for further reading:

• The Guardian : Free speech is empty without the right to offend

“ [T]ry thinking about this: I find it offensive that in many parts of the world people are regularly beaten, jailed and murdered for daring to follow a different belief system, for voicing their sexuality, or for suggesting they want a democratic government. I find it offensive that the majority of decisions in the UK parliament, in the judiciary, in the arts, are made by a small group of people who can shut out the views of large swaths of the population. I find the portrayal of women by much of the British media offensive. These things make me angry. But the fact that I find them offensive or anger-inducing cannot, and should never, be used as an excuse for shutting down their speech. Because that is exactly how millions of people are silenced the world over, how repressive regimes thrive – through law, or through violence, or both. And what protects people’s rights to say things I find objectionable is precisely what protects my right to object.

Violence is how the mob silences the minority, the terrorist its target. As the historian Timothy Garton Ash pointed out in our discussions last Friday, the so-called “heckler’s veto” – the threat of disorder being used to silence speech – has in the case of Charlie Hebdo, and now Copenhagen, been replaced by an attempted “assassin’s veto” – using the threat of murder to silence any of those with whom we disagree. And we cannot let that happen. ”

• The Guardian : Singapore’s “Fake News” law and its ramifications on free speech

“ The law, which passed on Wednesday, will require online media platforms to carry corrections or remove content the government considers to be false, with penalties for perpetrators including prison terms of up to 10 years or fines up to S$1m ($735,000).

Technology giants including Google and Facebook have said they see the law giving Singapore’s government too much power in deciding what qualifies as true or false.

Phil Robertson, deputy Asia director at Human Rights Watch said the new law was a “disaster for online expression by ordinary Singaporeans, and a hammer blow against the independence of many online news portals”.

“Singapore’s leaders have crafted a law that will have a chilling affect on internet freedom throughout south-east Asia, and likely start a new set of information wars as they try to impose their narrow version of ‘truth’ on the wider world.” ”

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Freedom Of Speech In Singapore Essay

In the Freedom Of Speech In Singapore Essay sample, here we will discuss What does freedom of speech mean? Is freedom of speech allowed in Singapore?, What Constitution is freedom of speech in Singapore? Should there be restrictions on freedom of speech for Singaporeans?, Singapore Freedom of speech issues, Freedom of speech ranking of Singapore, Some examples of freedom of speech, etc.

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In view of the importance and relevance that Freedom Of Speech holds in Singapore, this essay example could be very helpful to understand. If students want access to download this paper they should approach our experts who will provide them with custom-made essays according to their school or college needs.

Introduction- Freedom Of Speech In Singapore Essay  This is one of the most important human rights that we have. It allows us to express our opinion and communicate freely without fear of persecution. In Singapore, freedom of speech is limited in a number of ways, including through censorship laws, libel laws, and racial/religious insult laws. This Essay example explores how these limitations affect the country’s citizens and address some possible alternatives for reform. Main body- Freedom Of Speech In Singapore Essay  What does freedom of speech mean? Freedom of speech is the essential right to express one’s opinion, typically in public, without fear of retribution or censorship. In the United States, freedom of speech is described as “freedom from prior restraint”. This allows all people to say what they believe and prevents Singaporean government officials from telling them what they are allowed to say. Is freedom of speech allowed in Singapore? Yes. Article 14 provides that “the right to freedom of speech and expression includes the freedom to hold opinions without interference, the freedom to use words, ” Among other things this means Singapore citizens are able to express themselves orally or in writing in any manner they choose. The exceptions would be when there is a justification for enforcing restrictions on an individual’s free-speech rights under one of the qualified privileges provided by paragraph (1). In cases where such restrictions have been imposed, they must not contravene international law protecting freedom of expression. Restrictions may only be imposed where it can be shown that public order needs preservation and overrides national security or public safety considerations, or that national security considerations outweigh public order considerations. What Constitution is freedom of speech in Singapore? Singapore is a democratic society that values free speech. Freedom of speech is enshrined in Article 14 of the Constitution and Article 19 of Singapore’s Parliamentary Elections Act, which states that “[e]very person shall have the freedom to speak what he thinks on any subject.” The same article also provides for “fair and accurate” reporting by public media without censorship. This may be limited by laws such as the Sedition Act. Past offenses include remarks made about Christianity or Jews in 1983 and remarks on how Singaporeans were spending their national day celebrating instead of studying during the November 2000 school National Day hysteria). Sedition was enforced under Sir Stamford Raffles’ colonial government during the 1800s against press agencies demanding political representation. Should there be restrictions on freedom of speech for Singaporeans? It is clearly needs to be balanced against legal restrictions. The right to free speech is always restricted, and this point has caused much contention in Singapore’s history from organizations such as Wikileaks that recently came under attack by some high-profile Singaporeans who contend this should not be the case. There are many implications for each interpretation, but I think it is safe to say that freedom of speech needs to be considered legally as different from other rights like physical or economic freedom. Freedom of expression will often entail harsh criticism directed at both individuals and public institutions, which would necessarily lead them away from “excessively personal” sentiments – rather than just expressing their feelings without any relevance on the public sphere. Buy high-quality essays & assignment writing as per particular university, high school or college by Singapore Writers Get A Free Quote Singapore Freedom of speech issues  Singapore Freedom of speech is a contentious issue and broadly defined as the right to express one’s opinions free from government censorship or other forms of coercion or reprisal. The concept of freedom of expression had its origins in English common law and is protected by Article 10 (2) of the Constitution of Singapore. It  is not only restricted by external interferences but also self-censorship. This is not a right enshrined in the Singapore constitution. Article 14 of Singapore’s Constitution provides that Parliament may “by law impose restrictions on the freedom of movement” only if this is necessary to maintain public order, while article 18 protects citizens from being deprived of certain rights such as property, life, and personal liberty except under due process of law. Singaporean penalized for allegedly having committed any offense contrary to any written law can be denied bail at his or her first appearance before a magistrate if there is reason to believe that he will abscond; that he has been guilty of perjury or corruption and cannot show good cause why he should not be punished for such offenses; or he has refused reasonably to give his consent to be tried by a court of law having jurisdiction in the case. Freedom of speech ranking of Singapore Singapore has dropped on the rankings as far as freedom of speech. It was ranked number 78 out of 180 countries with a freedom index rating and now it’s at 91 out of 180. Political freedoms have worsened in Singapore, especially since 2011 when they passed a law that restricts public assemblies and extends police powers to detain suspects without trial for up to two years. “They’ve been clamping down hard on free speech,” says Umbach, who currently lives in Singapore where he works as an international lawyer advising companies doing business overseas on anti-corruption compliance. Stuck with a lot of homework assignments and feeling stressed ? Take professional academic assistance & Get 100% Plagiarism free papers Get A Free Quote Some examples of freedom of speech One example of freedom of speech is when people use the Internet to spread their messages. In 2017, Facebook caved to popular pressure and finally allowed people living in Turkey access to their websites. This gives Turkish citizens a chance to freely speak on how they want their country to operate, without fear of government persecution. Another example of freedom of speech that helps people’s voices be heard is protests in public spaces. Protests have been an American tradition since before the founding fathers signed the Declaration of Independence in 1776. “Freedom” also implies protest as being morally upright and ethically sound – which speaks volumes about politicians who choose not to address or compromise with protestors’ demands – choosing instead only silence and avoidance, as if such protest were not a necessary part of democracy. Conclusion: Freedom Of Speech In Singapore Essay is a right that each person deserves. It is not something to be taken for granted, but rather the opportunity to express oneself freely and openly without fear of retribution or harassment. This essay has given you some information about what freedom of speech means in Singapore, as well as how it applies to different people living there on either side of the issue. If this topic interests you, please take the time to read through our other essay sample- many more interesting topics await your exploration!

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'Fake News' Law Goes Into Effect In Singapore, Worrying Free Speech Advocates

Ashley Westerman

Singapore, which is the setting for the hit movie Crazy Rich Asians, has enacted a law against false information that critics say will stifle public discussion and hamstring journalists. Roslan Rahman/AFP/Getty Images hide caption

Singapore, which is the setting for the hit movie Crazy Rich Asians, has enacted a law against false information that critics say will stifle public discussion and hamstring journalists.

Updated at 6:12 p.m. ET

In Singapore, a law intended to crack down on "fake news" went into effect Wednesday, much to the dismay of free speech advocates and journalists.

The Protection from Online Falsehoods and Manipulation Act , which passed the country's parliament in May, requires online platforms — including social networking, search engine and news aggregation services — to issue corrections or remove content that the government deems false. Media companies that fail to comply face a fine of up to a 1 million Singapore dollars (about $722,000).

Individuals found guilty of violating the law, both inside and outside the tiny Southeast Asian country, could face fines of up to $60,000 or prison for up to 10 years.

Singaporean Prime Minister Lee Hsien Loong defended the bill when it passed , calling it a step in the right direction.

"I don't see our legislation as being in any way restrictive of free speech," Lee said in May, as quoted by the South China Morning Post . "I see this as a practical arrangement which will help us to tackle the problem [of fake news]."

Critics of the law accuse the ruling party, the People's Action Party, of passing the measure as a preemptive move ahead of elections in March 2020. Lee party has controlled Singapore's government since the city-state located at the tip of the Malaysian peninsula became fully self-governing in 1959.

Opposition lawmakers and free speech advocates in Singapore and around the region say the law will stifle public discussion and hamstring journalists in a country they say is steadily marching further toward authoritarianism.

Kirsten Han, Singapore-based chief editor of the online news site New Naratif, says it's not yet clear how often the new law will be used.

"But what worries me is that it would likely further entrench the culture of self-censorship, not just among journalists but among Singaporeans in general," Han tells NPR in an email.

Phil Robertson, deputy director of Human Rights Watch's Asia division, says in an email to NPR that the law "provides a carte blanche for Singapore ministers" to take down any online content they unilaterally deem false regardless of where it appears in the world.

Freedom of expression in Singapore is increasingly endangered, says Robertson, who points out that all independent media there is online only. He says Singapore touts itself as a place of international business and wealth, "but it whitewashes bad news and persecutes activists and whistleblowers who call the preferred image of Singapore into question."

Many Southeast Asian countries have similar laws on the books — Cambodia and Thailand have versions of lèse-majesté laws , while Myanmar has a colonial-era Official Secrets Act. Last year, Malaysia enacted (and then repealed ) a law against fake news, and this past January, Vietnam enacted a similar law that requires companies such as Facebook and Google to open offices there.

Governments in the region have justified such laws in the name of preserving national security, as public policy experts Elvin Ong and Isabel Chew note in the East Asia Forum .

Responding to Singapore's law, Google told Reuters that the measure "could stunt innovation, a quality that the city-state wants to nurture under plans to expand its tech industry." Meanwhile, Facebook has expressed concern that the law could "grant broad powers to the Singapore executive branch," according to Reuters.

Facebook, Google and Twitter all have their Asia headquarters in Singapore.

Correction Oct. 2, 2019

A previous version of this story said 1 million Singapore dollars converts to 72.2 million U.S. dollars but the correct U.S. figure is $722,000.

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Singapore in the 21st Century: Addressing the Unique Challenges of My Homeland

Singapore is my homeland, an island-state borne from the political turmoils of the 20th century — colonialism and communism. the prosperity enjoyed by singaporeans is a product of economic prosperity and political stability. this is fascinating to many, given singapore’s adoption of a free-market model yet with government-linked-corporations, or its unitary dominant-party nature. nevertheless, any nuanced insight and academic scholarship on singapore recognises the tradeoffs that have come with this success. in order to build a more prosperous society, where prosperity goes beyond material success to include economic well-being, issues from social, political and economic realms need to be addressed. this essay will examine the issues of freedom of speech, economic inequality and education, highlighting certain areas of concern and propose solutions. the issues were selected for their relevance and their nature in spanning across fields..

Published by ‍

Ethan Lee Yee Chien

August 15, 2023

Inquiry-driven, this article reflects personal views, aiming to enrich problem-related discourse.

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Article content

Singapore is my homeland, an island-state borne from the political turmoils of the 20th century — colonialism and communism. The prosperity enjoyed by Singaporeans is a product of economic prosperity and political stability. This is fascinating to many, given Singapore’s adoption of a free-market model yet with government-linked-corporations, or its unitary dominant-party nature. Nevertheless, any nuanced insight and academic scholarship on Singapore recognises the tradeoffs that have come with this success. In order to build a more prosperous society, where prosperity goes beyond material success to include economic well-being, issues from social, political and economic realms need to be addressed. This essay will examine the issues of freedom of speech, economic inequality and education, highlighting certain areas of concern and propose solutions. The issues were selected for their relevance and their nature in spanning across fields. 

First, to address the issue of freedom of speech. Singapore remains a country where these freedoms remain a point of contention between the government and activists/critics. While these rights are constitutionally guaranteed, there are policies and laws that have the potential to curtail these freedoms. 1 A potential threat lies in the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) that seeks to curb false statements on matters of public interest through the issuing of correction or stop communication orders by Ministers. 2 The risk arises in its details. While it is a comprehensive attempt to deal with the abuse of social media to spread hatred, the law allows for extensive government control. A prevailing condition for use is that the issue has to be in the “public interest” and includes the maintenance of “public confidence” as part of “public interest”. 3 As critiqued by the International Commission of Jurists, “members of a ruling government, holding political office, cannot be deemed, under the law, to be impartial, reliable artbiters of what constitutes ‘legitimate criticism’ of their performance”. 4 Hence, the law has the potential for abuse to violate freedom of speech in the name of maintaining ‘public confidence’. Additionally, POFMA in its current form lacks redress and sufficient oversight mechanisms. With the burden of proof being on the recipient of a POFMA correction order in court challenges,fruitful discussion on contentious topics where information is scarce becomes practically inconceivable. 5 As the leader of my country, I would re-examine POFMA and look into revisions to increase judicial oversight without compromising on efficacy. Firstly, the creation of an independent reviewing commission for POFMA usage to review appeal requests and orders on an impartial and objective basis. Secondly, allowing for the direct process for an appeal to be brought to the abovementioned independent commission or the High Court without an application to the Minister who ordered the direction. Lastly, reducing POFMA ambiguity through more transparent communication on what “public interest” entails in the issuing of correction or stop orders. These changes protect the freedom of speech in the country, contributing to prosperity both directly and indirectly. A Singapore that firmly aligns itself to protecting these rights would generate more productive discourse and new ideas that sustain economic growth in the long-run by value creation, increasing productivity and “competitiveness of existing enterprises”. 6 Additionally, it would further attract investors, particularly ethical investors. This is also in light of evidence that exchanging ideas is critical for producing an innovative economy. 7 Through the upholding of the freedom of speech, we allow for vibrant political and economic discourse that produce solutions for the betterment of society. 

Second, to address the issue of economic inequality. In spite of increasingly progressive taxation and continuous attempts to curb economic inequality, economic inequality remains an issue as an inherent outcome of Singapore’s capitalist system. 8 Gaps include the widening income ratio between top 10% and bottom 10% of earners, the lived reality of inequality, and structural factors. 9 To address the widening income ratio, I would first look into the measurement of inequality and include non-resident households in the calculation of the official Gini coefficient. This more holistically measures inequality, taking into account the fact that foreign workers in fields such as construction are likely to earn the lowest wages in the country. 10 To reduce socio-economic inequality, my solutions would lie in two main areas. One, increasing the Workfare Income Supplement (WIS), a payout scheme for lower wage workers, alongside legislation to prevent employer exploitation through unfair income regulation of employees and the allowing of greater flexibility in allocation of the WIS split across cash and CPF (a compulsory savings and pension plan for working Singaporeans and permanent residents). 11 This would allow for a greater closing of the income gap and also incentivise better income management. Two, to deal with structural factors and shift away from a self-reliance focused narrative, through a review of the lived reality plights of low-income households at the grassroots level and the funding of solutions for these issues with emphasis on education, housing and healthcare. This is due to the disparity between statistical data and the realities faced by low-income households, including those rooted in qualitative plights. An example of which is the cramped living conditions faced by lower-income families, highlighted by an ethnographic study of inequality by Professor Teo Yeo Yenn. 12 These policy changes address the disparities between reality and data, and would contribute to a more prosperous society by increasing economic well-being by reducing inequality, as well as increasing the disposable income of lower-wage workers to boost short-term economic growth. Third, to address the issue of education. Ultimately to build a prosperous society, an educated and economically relevant populace is key in driving progress in the socio-economic realm. 13 This however, does not necessitate complete adherence to economic pragmatism at the cost of educational equity. The issue with education in Singapore is a nuanced one — particularly the realities of full-subject-based-banding (FSBB) that replaced streaming. 14 FSBB is a replacement to streaming, where students are categorized according to academic ability based on standardized tests at various stages of childhood, rooted in economic pragmatism. 15 FSBB seeks to end stigmatization from streaming and boost social mixing through allowing students of different abilities to be together in the same class and to take individual subjects at different aptitude levels. 16 However, limitations remain such as structural constraints on upgrading the band of humanities subjects taken from Secondary 1 to Secondary 2 or the number of available subjects in different schools. 17 I would seek to impose a more ambitious FSBB policy, with a greater emphasis on educational equity without compromising entirely on pragmatism. This would come in the form of a review of assessment formats to better account for biases such as cultural competencies like setting priorities and time management that disproportionately reward children from middle and upper-classes. 18 I would also put in place greater flexibility to reward good performance through being able to more easily take subjects at a higher level, like being able to upgrade from a lower G3 band to a G1 (the highest) band of any subject given good academic performance at the end of every academic year. In general, policy focus will shift more towards educational equity. This helps create a more prosperous society as educational equity contributes towards economic mobility both inter and intra generational. 19 A focus on equity ensures that everyone is able to achieve their maximum economic output, whilst recognising the unique difficulties faced by different income groups. 

To conclude, my ideas to build a more prosperous society fundamentally rest on reviewing and re-examining policy issues and gaps faced in Singapore to derive nuanced solutions that address the problems whilst maintaining the virtues.

1 Parliament of Singapore, “Constitution of the Republic of Singapore” (1965), https://sso.agc.gov.sg/Act/CONS1963.

2 Parliament of Singapore, “Protection from Online Falsehoods and Manipulation Act 2019” (2019), https://sso.agc.gov.sg/Act/POFMA2019. 

4 Ian Seiderman to Hsien Loong Lee et al., “RE: Protection from Online Falsehoods and Manipulation Bill 2019,” Letter, April 2019. 

5 Selina Lum, “Burden of Proof on Recipient of Correction Directions under Pofma to Show Arguable Case: Apex Court,” The Straits Times , October 8, 2021, 

https://www.straitstimes.com/singapore/burden-of-proof-on-recipient-of-correction-directions-under-pof ma-to-show-arguable-case?ref=singapore-samizdat.com.

6 Shqipe Gerguri and Veland Ramadani, “The Impact of Innovation into the Economic Growth,” MPRA Paper , no. 22270 (May 20, 2010), https://ideas.repec.org/p/pra/mprapa/22270.html. 7 Edward L. Glaeser et al., “Growth in Cities,” Journal of Political Economy 100, no. 6 (December 1992): 1126–52, https://doi.org/10.1086/261856. 

8 Tessa Oh, “Budget 2023: More Progressive Tax Changes to Help Fund Social Support,” Business Times (Business Times, 2023), 

https://www.businesstimes.com.sg/singapore/budget-2023-more-progressive-tax-changes-help-fund-s ocial-support. 

9 Singapore Department of Statistics, “Average Monthly Household Income from Work per Household Member (Including Employer CPF Contributions) among Resident Employed Households,” Singapore Department of Statistics (Singapore Department of Statistics, February 9, 2023), https://tablebuilder.singstat.gov.sg/table/CT/17803.

10 Thum Ping Tjin, “Explainer: Inequality in Singapore,” New Naratif (New Naratif, April 28, 2023), https://newnaratif.com/explainer-inequality-in-singapore/.

11 Central Provident Fund Board, “CPFB | Workfare Income Supplement,” www.cpf.gov.sg, n.d., https://www.cpf.gov.sg/member/growing-your-savings/government-support/workfare-income-supplem ent ; Central Provident Fund Board, “CPFB | CPF Overview,” www.cpf.gov.sg, n.d., https://www.cpf.gov.sg/member/cpf-overview. 

12 You Yenn Teo, This Is What Inequality Looks Like (Singapore: Ethos Books, 2018). 13 Catherine Grant, “The Contribution of Education to Economic Growth,” K4D (K4D, March 3, 2017), https://assets.publishing.service.gov.uk/media/5b9b87f340f0b67896977bae/K4D_HDR_The_Contribu tion_of_Education_to_Economic_Growth_Final.pdf. 

14 Ministry of Education, Singapore, “Full Subject-Based Banding (Full SBB),” www.moe.gov.sg (Ministry of Education, Singapore), accessed June 2, 2023, 

https://www.moe.gov.sg/microsites/psle-fsbb/full-subject-based-banding/secondary-school-experience .html.

16 Amelia Teng, “What MPs Said about Abolishing Streaming and Replacing It with Subject-Based Banding,” The Straits Times, March 4, 2019, 

https://www.straitstimes.com/singapore/education/parliament-mps-urge-moe-to-abolish-streaming-repl ace-it-with-subject-based. 

17 Ministry of Education, Singapore, “Full Subject-Based Banding (Full SBB),” www.moe.gov.sg (Ministry of Education, Singapore), accessed June 2, 2023, 

https://www.moe.gov.sg/microsites/psle-fsbb/full-subject-based-banding/secondary-school-experience .html. 

18 Cameron Kheng, “Reasons to Doubt the ‘End of Streaming’ in Singapore – Singapore Policy Journal,” Singapore Policy Journal | A Harvard Kennedy School Publication, July 1, 2022, https://spj.hkspublications.org/2022/07/01/reasons-to-doubt-the-end-of-streaming-in-singapore/#_ftn1 1. 

19 OECD, Equity in Education (OECD, 2018), 192, https://doi.org/10.1787/9789264073234-en.

Central Provident Fund Board. “CPFB | CPF Overview.” www.cpf.gov.sg, n.d. https://www.cpf.gov.sg/member/cpf-overview. 

———. “CPFB | Workfare Income Supplement.” www.cpf.gov.sg, n.d. https://www.cpf.gov.sg/member/growing-your-savings/government-support/workfare income-supplement. 

Gerguri, Shqipe, and Veland Ramadani. “The Impact of Innovation into the Economic Growth.” MPRA Paper , no. 22270 (May 20, 2010). 

https://ideas.repec.org/p/pra/mprapa/22270.html. 

Glaeser, Edward L., Hedi D. Kallal, José A. Scheinkman, and Andrei Shleifer. “Growth in Cities.” Journal of Political Economy 100, no. 6 (December 1992): 1126–52. https://doi.org/10.1086/261856. 

Grant, Catherine. “The Contribution of Education to Economic Growth.” K4D . K4D, March 3, 2017. 

https://assets.publishing.service.gov.uk/media/5b9b87f340f0b67896977bae/K4D_HD R_The_Contribution_of_Education_to_Economic_Growth_Final.pdf. 

Kheng, Cameron. “Reasons to Doubt the ‘End of Streaming’ in Singapore – Singapore Policy Journal.” Singapore Policy Journal | A Harvard Kennedy School Publication, July 1, 2022. 

https://spj.hkspublications.org/2022/07/01/reasons-to-doubt-the-end-of-streaming-in-s ingapore/#_ftn11. 

Lum, Selina . “Burden of Proof on Recipient of Correction Directions under Pofma to Show Arguable Case: Apex Court.” The Straits Times . October 8, 2021. 

https://www.straitstimes.com/singapore/burden-of-proof-on-recipient-of-correction-di rections-under-pofma-to-show-arguable-case?ref=singapore-samizdat.com. Ministry of Education, Singapore. “Full Subject-Based Banding (Full SBB).” www.moe.gov.sg. Ministry of Education, Singapore. Accessed June 2, 2023. https://www.moe.gov.sg/microsites/psle-fsbb/full-subject-based-banding/secondary-sc hool-experience.html. 

OECD. Equity in Education . OECD, 2018. https://doi.org/10.1787/9789264073234-en. Oh, Tessa . “Budget 2023: More Progressive Tax Changes to Help Fund Social Support.” Business Times. Business Times, 2023.

https://www.businesstimes.com.sg/singapore/budget-2023-more-progressive-tax-chan ges-help-fund-social-support. 

Parliament of Singapore. Constitution of the Republic of Singapore (1965). https://sso.agc.gov.sg/Act/CONS1963. 

———. Protection from Online Falsehoods and Manipulation Act 2019 (2019). https://sso.agc.gov.sg/Act/POFMA2019. 

Seiderman, Ian. Letter to Hsien Loong Lee, Chee Hean Teo, Tharman Shanmugaratnam , and Kasiviswanathan SC Shanmugam. “RE: Protection from Online Falsehoods and Manipulation Bill 2019.” Letter, April 2019. 

Singapore Department of Statistics. “Average Monthly Household Income from Work per Household Member (Including Employer CPF Contributions) among Resident Employed Households.” Singapore Department of Statistics . Singapore Department of Statistics, February 9, 2023. https://tablebuilder.singstat.gov.sg/table/CT/17803. 

Teng, Amelia. “What MPs Said about Abolishing Streaming and Replacing It with Subject-Based Banding.” The Straits Times, March 4, 2019. 

https://www.straitstimes.com/singapore/education/parliament-mps-urge-moe-to-abolis h-streaming-replace-it-with-subject-based. 

Teo, You Yenn. This Is What Inequality Looks Like . Singapore: Ethos Books, 2018. Tjin, Thum Ping. “Explainer: Inequality in Singapore.” New Naratif. New Naratif, April 28, 2023. https://newnaratif.com/explainer-inequality-in-singapore/.

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Pofma curtails constitutional right to free speech, SDP argues in apex court appeal

SINGAPORE - The Singapore Democratic Party (SDP) on Thursday (Sept 17) presented its appeal in the apex court against correction directions issued to it under the fake news law, mounting a fresh argument that the law is a serious restriction on freedom of speech guaranteed in the Constitution.

The party's lead counsel, Mr Suresh Nair of law firm PK Wong & Nair, argued before five judges in the Court of Appeal that public interest has been defined in the Protection from Online Falsehoods and Manipulation Act (Pofma) in overly broad terms.

He added that it goes beyond the permissible constraints on freedom of speech outlined in Article 14 of the Constitution and is invalid.

The court, comprising Chief Justice Sundaresh Menon and four Judges of Appeal - Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong - reserved judgment.

They gave Mr Nair four weeks to submit his written arguments on the constitutionality of Pofma's provisions, which had not been made previously in the SDP's failed appeal in the High Court. Justice Ang Cheng Hock had dismissed the appeal in February.

Another issue arising from the case is the question of whether a correction direction should be upheld even if the court disagrees with the minister's initial interpretation of the targeted statement.

In the SDP's case, Manpower Minister Josephine Teo had ordered corrections on the grounds that the SDP had falsely claimed the retrenchment of local professionals, managers, executives and technicians (PMETs), as an absolute number, was on the rise.

Justice Ang disagreed with this interpretation as the article that attracted the corrections had referred to a "rising proportion of Singapore PMETs getting retrenched".

Interpreting it to mean an absolute number would ignore the word "proportion", he had said.

On Thursday, the Attorney-General's Chambers (AGC) said Justice Ang had taken too literal an approach in focusing on the word "proportion".

But Justice Phang criticised the AGC's argument as "so much juggling and semantic manoeuvring" and said it did not make sense.

"In this day and age, I think most people who can read English would understand the word 'proportion'. In my view, trying to interpret that as an absolute number would be unreasonable."

Despite disagreeing with the interpretation, Justice Ang had upheld the correction after finding an alternative interpretation of the phrase to mean that the share of retrenched local PMETs as a proportion of all local PMET employees had been increasing - which was still false.

Mr Nair argued that Justice Ang had erred in doing so as the correction directions were issued on the basis of the earlier interpretation which had been rejected.

He said the minister should be bound to the interpretation originally set out in the correction and not be free to "move the goalposts" to another interpretation that emerges later on.

Ms Kristy Tan of the AGC responded that the minister has the power to vary the correction direction, but CJ Menon pointed out that Mrs Teo did not do so despite an invitation from the High Court.

Justice Chong said: "We shouldn't anticipate that the minister will issue the varying subject statement, particularly in this case when, having been invited to do so, she declined to do so. So why should we uphold a subject statement (which had been provided by Justice Ang) in anticipation that the minister will (vary the correction direction)?"

CJ Menon also dealt with the question of where the burden of proof lies in Pofma cases.

In the SDP's case, Justice Ang Cheng Hock had ruled that the onus is on the Government to prove the targeted statement false, but Justice Belinda Ang had held in The Online Citizen's case that the statement maker bears the burden.

CJ Menon suggested that there could be a third way to approach the matter and characterised a Pofma case as being about "an administrative decision taken by the minister in the exercise of his or her statutory power".

A person who challenges a correction direction is essentially arguing that the correction was not issued with a proper basis, CJ Menon said, adding that a challenge of statutory powers would usually involve a process known as a judicial review.

Similar to a judicial review, it should be incumbent on the person challenging the correction direction to establish a prima facie case by raising an objective basis for claiming that power was not correctly exercised, said CJ Menon.

"Once you show that and establish that there is something to be examined, then the burden shifts and it becomes incumbent on the minister to make good the falseness of a statement."

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

Before answering this question, read the full text of the amendment. What does it say about speech?

Congress shall make no law 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.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “ High Schools Threaten to Punish Students Who Kneel During Anthem ,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem. On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “ Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech ,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views. And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome. It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “ Supreme Court Strikes Down Law Barring Political Apparel at Polling Places ,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places. In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why? • Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why? • Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools? • Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)? • Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

Breaking down TikTok’s legal arguments around free speech, national security claims

Social media platform TikTok says that a bill banning the app in the U.S. is “unconstitutional” and that it will fight this latest attempt to restrict its use in court.

The bill in question, which President Joe Biden signed Wednesday , gives Chinese parent company ByteDance nine months to divest TikTok or face a ban on app stores to distribute the app in the U.S. The law received strong bipartisan support in the House and a majority Senate vote Tuesday, and is part of broader legislation including military aid for Israel and Ukraine.

“Make no mistake. This is a ban. A ban on TikTok and a ban on you and YOUR voice,” said TikTok CEO Shou Zi Chew in a video posted on the app and other social media platforms. “Politicians may say otherwise, but don’t get confused. Many who sponsored the bill admit that a TikTok ban is their ultimate goal…It’s actually ironic because the freedom of expression on TikTok reflects the same American values that make the United States a beacon of freedom. TikTok gives everyday Americans a powerful way to be seen and heard, and that’s why so many people have made TikTok a part of their daily lives,” he added.

Our CEO Shou Chew's response to the TikTok ban: pic.twitter.com/l0RAPJMobK — TikTok Policy (@TikTokPolicy) April 24, 2024

This isn’t the first time the U.S. government has attempted to ban TikTok, something several other countries have already implemented.

TikTok is based in Los Angeles and Singapore, but it’s owned by Chinese technology giant ByteDance. U.S. officials have warned that the app could be leveraged to further the interests of an “entity of concern.”

In 2020, former President Donald Trump issued an executive order to ban TikTok’s operations in the country, including a deadline for ByteDance to divest its U.S. operations. Trump also tried to ban new downloads of TikTok in the U.S. and barred transactions with ByteDance after a specific date.

Federal judges issued preliminary injunctions to temporarily block Trump’s ban while legal challenges proceeded, citing concerns about violation of First Amendment rights and lack of sufficient evidence demonstrating that TikTok posted a national security threat.

After Trump left office, Biden’s administration picked up the anti-TikTok baton . Today, the same core fundamentals are at stake. So why do Congress and the White House think the outcome will be different?

TikTok has not responded to TechCrunch’s inquiry as to whether it has filed a challenge in a district court, but we know it will because both Chew and the company have said so.

When the company makes it in front of a judge, what are its chances of success?

TikTok’s “unconstitutional” argument against a ban

“In light of the fact that the Trump administration’s attempt in 2020 to force ByteDance to sell TikTok or face a ban was challenged on First Amendment grounds and was rejected as an impermissible ‘indirect regulation of informational materials and personal communications,’ coupled with last December’s federal court order enjoining enforcement of Montana’s law that sought to impose a statewide TikTok ban as a ‘likely’ First Amendment violation, I believe this latest legislation suffers from the same fundamental infirmity,” Douglas E. Mirell, partner at Greenberg Glusker, told TechCrunch.

In other words, both TikTok as a corporation and its users have First Amendment rights, which a ban threatens.

In May 2023, Montana Governor Greg Gianforte signed into law a bill that would ban TikTok in the state, saying it would protect Montanans’ personal and private data from the Chinese Communist Party. TikTok then sued the state over the law, arguing that it violated the Constitution and the state was overstepping by legislating matters of national security. The case is still ongoing, and the ban has been blocked while the lawsuit progresses.

Five TikTok creators separately sued Montana, arguing the ban violated their First Amendment rights, and won. This ruling thus blocked the Montana law from going into effect and essentially stopped the ban. A U.S. federal judge claimed the ban was an overstep of state power and also unconstitutional, likely a violation of the First Amendment. That ruling has set a precedent for future cases.

TikTok’s challenge to this latest federal bill will likely point to that court ruling, as well as the injunctions to Trump’s executive orders, as precedent for why this ban should be reversed.

TikTok may also argue that a ban would affect small and medium-sized businesses that use the platform to make a living. Earlier this month, TikTok released an economic impact report that claims the platform generated $14.7 billion for small- to mid-sized businesses last year, in anticipation of a ban and the need for arguments against it.

The threat to “national security”

Mirell says courts do give deference to the government’s claims about entities being a national security threat.

However, the Pentagon Papers case from 1971, in which the Supreme Court upheld the right to publish a classified Department of Defense study of the Vietnam War, establishes an exceptionally high bar for overcoming free speech and press protections.

“In this case, Congress’ failure to identify a specific national security threat posed by TikTok only compounds the difficulty of establishing a substantial, much less compelling, governmental interest in any potential ban,” said Mirell.

However, there is some cause for concern that the firewall between TikTok in the U.S. and its parent company in China isn’t as strong as it appears.

In June 2022, a report from BuzzFeed News found that U.S. data had been repeatedly accessed by staff in China, citing recordings from 80 TikTok internal meetings. There have also been reports in the past of Beijing-based teams ordering TikTok’s U.S. employees to restrict videos on its platform or that TikTok has told its moderators to censor videos that mentioned things like Tiananmen Square, Tibetan independence or banned religious group, Falun Gong.

In 2020, there were also reports that TikTok moderators were told to censor political speech and suppress posts from “undesirable users” — the unattractive, poor and disabled — which shows the company is not afraid to manipulate the algorithm for its own purposes.

TikTok has largely brushed off such accusations, but following BuzzFeed’s reporting, the company said it would move all U.S. traffic to Oracle’s infrastructure cloud service to keep U.S. user data private. That agreement, part of a larger operation called “Project Texas,” is focused on furthering the separation of TikTok’s U.S. operations from China and employing an outside firm to oversee its algorithms. In its statements responding to Biden’s signing of the TikTok ban, the company has pointed to the billions of dollars invested to secure user data and keep the platform free from outside manipulation as a result of Project Texas and other efforts.

Yaqiu Wang, China research director at political advocacy group Freedom House, believes the data privacy issue is real.

“There’s a structural issue that a lot of people who don’t work on China don’t understand, which is that by virtue of being a Chinese company — any Chinese company whether you’re public or private — you have to answer to the Chinese government,” Wang told TechCrunch, citing the Chinese government’s record for leveraging private companies for political purposes. “The political system dictates that. So [the data privacy issue] is one concern.”

“The other is the possibility of the Chinese government to push propaganda or suppress content that it doesn’t like and basically manipulate the content seen by Americans,” she continued.

Wang said there isn’t enough systemic information at present to prove the Chinese government has done this in regards to U.S. politics, but the threat is still there.

“Chinese companies are beholden to the Chinese government which absolutely has an agenda to undermine freedom around the world,” said Wang. She noted that while China doesn’t appear to have a specific agenda to suppress content or push propaganda in the U.S. today, tensions between the two countries continue to rise. If a future conflict comes to a head, China could “really leverage TikTok in a way they’re not doing now.”

Of course, American companies have been at the center of attempts by foreign entities to undermine democratic processes, as well. One need look no further than the Cambridge Analytica scandal and Russia’s use of Facebook political ads to influence the 2016 presidential election, as a high-profile example.

That’s why Wang says more important than a ban on TikTok is comprehensive data privacy law that protects user data from being exploited and breached by all companies.

“I mean if China wants Facebook data today, it can just purchase it on the market,” Wang points out.

TikTok’s chances in court are unclear

The government has a hard case to prove, and it’s not a sure decision one way or the other. If the precedent set by past court rulings is applied in TikTok’s future case, then the company has nothing to worry about. After all, as Mirell has speculated, the TikTok ban appears to have been added as a sweetener needed to pass a larger bill that would approve aid for Israel and Ukraine. However, the current administration might also have simply disagreed with how the courts have decided to limit TikTok in the past, and want to challenge that.

“When this case goes to court, the Government (i.e., the Department of Justice) will ultimately have to prove that TikTok poses an imminent threat to the nation’s national security and that there are no other viable alternatives for protecting that national security interest short of the divestment/ban called for in this legislation,” Mirell told TechCrunch in a follow-up email.

“For its part, TikTok will assert that its own (and perhaps its users’) First Amendment rights are at stake, will challenge all claims that the platform poses any national security risk, and will argue that the efforts already undertaken by both the Government (e.g., through its ban upon the use of TikTok on all federal government devices) and by TikTok itself (e.g., through its ‘Project Texas’ initiative) have effectively mitigated any meaningful national security threat,” he explained.

In December 2022, Biden signed a bill prohibiting TikTok from being used on federal government devices. Congress has also been considering a bill called the Restrict Act that gives the federal government more authority to address risks posed by foreign-owned technology platforms.

“If Congress didn’t think that [Project Texas] was sufficient, they could draft and consider legislation to enhance that protection,” said Mirell. “There are plenty of ways to deal with data security and potential influence issues well short of divestment, much less a ban.”

What’s going on with the TikTok ban?

Jfk Inaugural Address Essay

John F. Kennedy's inaugural address in 1961 was a powerful and thought provoking speech that touched on the values and principles of freedom, democracy, human rights, and unity. The purpose of this speech was to inspire and unify the American people, as well as to signal to the world the intentions and values of the new administration. Throughout the speech, Kennedy emphasizes the importance of freedom, stating that it is a fundamental right that comes from God, not the government. In acknowledging the power of an individual to shape the world, Kennedy challenges his audience to take responsibility for the betterment of society and to work towards the common good. This message helps reinforce Kennedy's call for unity and cooperation, both domestically

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