ROLE Essay Competition 2019 English Group Champion
Freedom of expression and rule of law
In the recent political turmoil surrounding the Hong Kong extradition bill, some supporters of the government have claimed that they should have the freedom to express their opinion, which includes their opinion on how there should be suppression of freedom on anti-government protesters. Under Article 27 of the Hong Kong Basic Law, "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike." Essentially, the law is obliged to protect such opinions, but there exists the self-contradiction: the law has to protect the freedom of expression for those who wish to destroy it.
The “paradox of intolerance”, introduced by philosopher Karl Popper in 1945, demonstrates how freedom of expression and rule of law are conflicted. The paradox states that “unlimited tolerance must lead to the disappearance of tolerance.” As voices calling for the eradication of freedom of expression grow, if a society is too tolerant on such opinions, the takeover of intolerance from such opinions must occur. So, to prevent such a destruction of freedom of expression, a society must not be tolerant of intolerance.
But such an act could, ultimately, be the enemy of freedom of expression itself. In his widely acclaimed book, “On Liberty”, John Stuart Mill stated “if the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” In his theory, society should allow even hateful opinions as long as they do not cause harm to others.
And here is where the rule of law comes into play. The rule of law is exercised to protect the rights of every individual. But even with the law protecting freedom of expression, how this right is practiced is sometimes uncertain, as demonstrated in the paradox of tolerance. The borderline of intervention by the law is somehow unclear.
It may be hastily concluded that a dichotomy between freedom of expression and rule of law can be drawn. However, the notion that freedom of expression and rule of law are conflicting ideas trivialises the real relationship between the rule of law and freedom of expression. As demonstrated by thousands of years of history, the existence of intolerance is unable to be eradicated by law. There must be someone who would radicalize freedom of expression and silence opponents in the name of freedom. As ACLU Legal Director David Cole puts it, “our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the advocacy of violence as a justification to punish people who associated with Communists, socialists, or civil rights groups.”
Examining the roots of modern law has brought insight to the relationship between the rule of law and freedom of expression. John Locke’s “Second Treatise of Government” mentioned that individuals, being unable to fully enjoy their possessions due to uncertainties brought by the rule of the jungle, form societies “for the mutual preservation of their lives, liberties and estates.” Humans submit part of their natural-born freedoms in exchange for protection of their remaining rights under a social contract. It is the duty of law to protects these rights. This forms the intrinsic relationship between the rule of law and freedom of expression. And the principle of proportionality, which is the idea that the severity of punishment should fit the seriousness of the crime, also helps the law in protecting freedom of expression. As long as hateful opinions are kept in check by other public opinions, a society should remain proportionally tolerant towards the intolerant. It is only when this intolerance grows in size, which is actually harming the freedom of expression of the public, that the law should punish it to protect society as a whole. "The right to swing your arms in any direction ends where my nose begins."
The rule of law and freedom of expression are both principles to protect the liberty of individuals. Instead of antagonizing each other, they rather mutually benefit each other so that members of a society could live with more freedom. It is only in a free society that the public can criticize the government without fear of oppression or retaliation from authorities. The law safeguards the public from intolerance expressed by anyone, including higher authorities and institutions, so that people can live freely as a whole. The rule of law is, in fact, the last line of defense of freedom of expression.