The limits of free expression

“How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied.”
– American Civil Liberties Union

If the constitutionally guaranteed freedom of expression were absolute, there would be chaos instead of the relatively orderly society that now obtains. Our Constitution is clear that this freedom is to be exercised subject to restrictions only and that nothing done under the authority of any law shall be held to be inconsistent with the guarantee to the extent that the law makes provision that is in the public interest or that it is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, and maintaining the authority and independence of the courts, inter alia.

However, sometimes, the exercise of this freedom is likely to offend one group or another and it is then left to the state, in the exercise of its sovereign power, to determine whether the message of the speech or other expression expected to be published should be permitted in that jurisdiction. Such a decision would have faced the government of Jamaica recently when a fundamentalist pastor, Steven Anderson, who is reputed, from the report published last week in the Barbados Advocate, to have “a reputation for extreme homophobia, and preaches a volatile stance against homosexuality” sought entry into that country.

Given the reputation of Jamaica for its notorious abhorrence of those engaged in the practice and of the LGBT movement in general, Mr Anderson perhaps thought he would have encountered a sympathetic audience for his discriminatory and inciting theses.

However, according to the report, the Jamaica government decided, as had four other states earlier, to deny entry to the pastor. He is stated to have expressed surprise at this, since he was under the impression that Jamaica was “the most homophobic country in the world” and would therefore have welcomed him. This incident demonstrates that the extent of freedom of expression may vary from jurisdiction to jurisdiction and even though the Jamaican Charter of Fundamental Rights and Freedoms 2011 would seem to be cast in similar terms to the United States First Amendment – that Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes the guaranteed rights – it seems clear that the Jamaican government, in the face of protests from human rights activists, online campaigners and sundry others decided that the denial of entry was justified in its concept of a free and democratic society.

According to strict law in the United States, Mr Anderson’s message ought not to have been censored in any way, since the Supreme Court there has ruled that inflammatory speech-and even speech advocating violence by members of the Ku Klux Klan-is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).In spite of this arguably high threshold for free expression, it has not prevented some institutions in the US from banning speakers on various grounds because of the import of their probable message. Similarly, we believe, contrary to the assertion of the ACLU in the epigraph, that the state must retain some residual authority to determine the extent of individual freedom of expression in its borders once it is anticipated that the speech is liable to incite violence against a segment of its population.

Barbados Advocate

Mailing Address:
Advocate Publishers (2000) Inc
Fontabelle, St. Michael, Barbados

Phone: (246) 467-2000
Fax: (246) 434-2020 / (246) 434-1000