Open Journal of Philosophy
2013. Vol.3, No.3, 380-390
Published Online August 2013 in SciRes (
Copyright © 2013 SciRes.
Democratic Freedom of Expression
Ricardo Restrepo
Centro de Derechos y Justicia, Instituto de Altos Estudios Nacionales, Quito, Ecuador
Email:, nz
Received May 7th, 2013; revised June 7th, 2013; ac c ep t ed June 1 4th, 2013
Copyright © 2013 Ricardo Restrepo. This is an open access article distributed under the Creative Commons At-
tribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the
original work is properly cited.
This paper suggests the democratic direction in which the right of freedom of expression should be con-
ceived and applied. In the first two sections it suggests some counter-examples to, and diagnoses of, the
libertarian and liberal conceptions of freedom of expression, taking Scanlon (1972) and Scanlon (1979),
respectively, to be their chief proponents. The paper suggests that these conceptions cannot take into ac-
count clear examples, like fraudulent propaganda, which should not be legal. The democratic conception
takes it to heart that the pillars upon which the right of freedom of expression is founded are individual
and collective autonomy, the right to know facts of public interest and information necessary for effective
democratic control of government. The paper suggests that in a time when private powers seriously
threaten these pillars, it is correct for the government to step in to provide the framework in which genu-
ine discussion geared toward fulfilling the objectives of these pillars can take place.
Keywords: Freedom of Expression; Media; Libertarianism; Liberalism; Democracy
The right to freedom of expression and the democratic sys-
tem have a directly proportional relationship. Through the ex-
ercise of this right we are able to decide who we are, to speak
our minds, get information, cast our vote, shape government
and hold it to account, and influence our environment so that it
becomes the kind of place we wish to lead our lives in. A place
in which these things happen is a democracy—and in turn, the
democratic system provides the social, political and economic
conditions for this right to be effectively exercised.1 If you
make the system more democratic, you increase the effective
capacity of individuals to exercise their right to freedom of
expression of individuals, and conversely, if you increase the
effective capacity for individuals to exercise their right to free-
dom of expression you create a more democratic system
—otherwise, you might have a democratic society only in
pretty proclamations. There cannot be democracy without
freedom of expression and there is no freedom of expression
where there is no democracy. In this sense, individual freedom
of expression rights and democracy have fractal structures,
where the micro and macro structures reflect one another.
While the right of freedom of expression involves the right of
freedom of artistic expression and academic freedom, for in-
stance, the central interest in this paper is on media freedom.
The democratic analysis of the right of freedom of expres-
sion may sound fairly trite, standard, and even, perhaps, con-
servative. Could the right of freedom of expression be con-
ceived otherwise than as democratic? It is within a framework
of democratic values that, in my view, the right of freedom of
expression makes unique sense and this paper aims to make this
claim more precise, cogent and differentiated from alternative
libertarian and liberal conceptions. I apply a fairly uncontrover-
sial conception of the proper functions of the right of freedom
of expression, to two concrete cases of international contro-
versy: Julian Assange and Wiki Leaks, and Correa v. Palacio
and El Universo. Independent of avowed adherence to democ-
racy, supposed bastions of the right of freedom of expression in
society such as some major human rights NGO’s, states and the
major mass media turn out to be defending undemocratic posi-
tions—undermining the authentic right of freedom of expres-
sion in society.
Crucial underlying functions of the right of freedom of ex-
pression, in terms of which this right acquires value, are
achieving individual and collective autonomy, informed de-
mocratic control of government by the people and the right to
know facts of public interest.2 Securing the realization of such
values furthers the cause of the abolition of domination, while
extending the exercise of freedom of expression to the point
where it becomes an act of domination is to extend it beyond
the sphere in which this freedom is a right.3 The same happens
with the freedom of movement (Art. 13 of The Universal Dec-
laration of Human Rights)—it is a right until the point at which,
without reason, my fist impacts someone’s nose. The right of
freedom of expression defines a scope for this freedom—it is
the scope in which freedom is (at least) not unjust. The liber-
tarian and liberal conceptions of freedom of expression hold a
version of the doctrine that the content of any expression is
1Braddon- Mitchel l and Wes t (200 4) thin k of fr ee speech as a pr opert y more
properly thought to pertain to communities rather than to individuals,
though this paper does not imply that freedom of expression is exclusively
individualistic or social. The social way of thinking of freedom speech is
also seen in Fiss (1986).
2I take such values to be shared in the discussion of freedom of ex
at least from Mill (1789/1975) onwards.
3This paper, while opting for several departures, gathers inspiration from
the democratic justice of Ian Shapiro and republicanism of Philip Pettit,
found in Shapiro (2003a; 2003b; 2011; 2012) a nd Pettit (1997; 2009).
sacrosanct, in that it is to be unlimitedly protected from gov-
ernment intervention, independent of whether it is false or leads
to harmful consequences. At a fundamental level, these views
seem to employ a kind undue apriorism by wrongly assuming
that a lack of lawful state regulation is the best way to uphold
the features in terms of which the right of freedom of expres-
sion is valuable—unreflectingly assuming that the scope of all
possible contents of expression is the scope of expression con-
siderations of justice can legitimize.
The aforementioned apriorism about norms these concept-
tions imply fails to centrally take into consideration specific
ways in which private power, a power very present in our times,
may undermine the right of freedom of expression. The aprior-
ism can be diagnosed to fall prey to what Anthony Coady (2008)
calls “absolutist moralism” and “moralism of unbalanced fo-
cus”. A proposed precisification of what Coady has in mind is
that the first kind of moralism involves assuming that some-
thing that might make a positive contribution to the realization
of something morally worthy has that positive effect under all
conditions; the second kind of moralism is condemning or ap-
praising an action without taking due account of its predictable
consequences. Of course, the two moralisms are related. If you
engage in absolutist moralism because you assume all actions
or properties of a certain type are under all circumstances worth
protecting, fomenting, or restricting, you are vulnerable to en-
gaging in moralism of unbalanced focus, because you are likely
not looking at the predictable consequences, good or bad, of
that action in the circumstances in which it is being deployed.
This paper begins with a critique of the libertarian concep-
tion of freedom of expression in section one. In the second
section, the paper continues with a criticism of the liberal con-
ception of freedom of expression. In the third section, the paper
identifies distinguishing features of the democratic conception
of freedom of expression. Finally, the paper concludes.
Libertarian Freedom of Expression
In 1972 Scanlon published a seminal paper defending an un-
restricted content-libertarianism. Scanlon claimed that content
should never be restricted in virtue of the message it carries.
The content of each and every expression is sacrosanct. Any
person has the right to express any content, and the content of
expression should be unlimitedly protected against the claim
that it leads people to have false beliefs and to cause people to
do harm. Scanlon synthesizes his 1972 view through the Mil-
lian Principle:
There are certain harms which, although they would not
occur but for certain acts of expression, nonetheless can-
not be taken as part of a justification for legal restrictions
on these acts. These harms are: a) harms to certain indi-
viduals which consist in their coming to have false beliefs
as a result of those acts of expression; b) harmful conse-
quences of acts performed as a result of those acts of ex-
pression, where the connection between the acts of ex-
pression and the subsequent harmful acts consists merely
in the fact that the act of expression led the agents to be-
lieve (or increased their tendency to believe) these acts to
be worth performing (Scanlon, 1972: p. 213).
As Scanlon notes, key to this conception is that it does not
talk directly about the views it might allow restriction over, but
rather it references the justifications that could not be employed
to restrict them. There are various internal problems with this
view, in that it prohibits the legitimate measures Scanlon and
relevant other parties to this debate accept. For instance, Scan-
lon believed that it is “obvious that this principle is compatible
with acceptable reasons for restricting expression” grounding,
for instance, defamation laws, laws against assault involving
successful communication of a threat, laws against widely dis-
seminating scientific knowledge of how to make very harmful
bombs that would require little effort to fabricate, and even
laws that would prevent a person from deceitfully yelling
“Fire!” in a theater (Scanlon, 1972: pp. 210-211).
One might add false advertisement, perjury, fraud, murder
through the use of deceit, malpractice expressed in a medical
opinion and academic plagiarism as legitimate no-go zones for
freedom of expression on the grounds of their harmful conse-
quences and/or their tendency to lead others to believe harmful
actions to be worth performing. Scanlon believed we could
have our cake and eat it too: endorsing a theory that gives us
simultaneously our reasonable grounds for legitima te limits and
an unrestricted protection for the flow of any and all ideas at the
same time. The obvious thing about this set of contentions is, of
course, that it is not consistent. Defamation laws are justified
because of the harmful false beliefs they generate, at the unjust
expense of the target of defamation. Laws against expressions
constituting a type of assault are justified precisely because
they generate harmful states of mind, causing you, for instance,
to have to let go of your belongings because the expressions of
the thug made you believe that this was indeed worth doing.
Cogent arguments of this kind in certain situations in favor of
certain restrictions of freedom of expression are obviously go-
ing to apply. But a consistent application of the Millian princi-
ple would, of course, rule out such reasonable legitimate re-
To focus on a more controversial case, given, for instance,
that reputation matters significantly to a person’s livelihood and
professional development, it seems reasonable that the law
should protect us from people who wish to take away our de-
served respect and recognition through slander. Defamation
laws, like other lower level laws that guarantee the right of
freedom of expression, have a grounding in human rights codes.
Article 22 of the Universal Declaration of Human Rights states
that everyone has the right to uphold and protect their dignity.
And perhaps more explici tly, Article 12 says that “No one shall
be subjected to arbitrary interference with his privacy […] nor
to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or
attacks.” Article 21 specifies the right that the authority of gov-
ernment is the will of the people, chosen through free elections.
If lies on a massive scale violate the right of the people to freely
will their choice for government, then those lies are not a right,
since deceived choice is not free choice. With few exceptions,
all countries have signed and ratified the International Covenant
on Civil and Political Rights, which through Article 17, virtu-
ally repeats verbatim Article 12. Further, the covenant specifies
in Article 19 that:
Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and im-
part information and ideas of all kinds […] The exercise
of [these] rights… carries with it special duties and re-
sponsebilities. It may therefore be subject to certain re-
strictions, but these shall only be such as are provided by
Copyright © 2013 SciRes. 381
law and are necessary… [f] or respect of the rights or
reputations of others; [among others].
With the exception of the United States and Canada,4 virtu-
ally all countries of the Americas have ratified the American
Convention on Human Rights, which through Article 13 guar-
antees the right to freedom of expression by claiming the uni-
versal right to freedom of research, opinion, expression and
thought in any medium. It says that people are free to exercise
this right until it becomes an encroachment on the rights and
reputations of others. The natural reading of such statements of
internationally recognized human rights with reference to dig-
nity, reputation, and rights, involves, of course, the right of
persons not to have other agents fabricate and propagate sig-
nificantly harmful, false or negligently-verified information that
negatively affects their rights. International laws and conven-
tions are of course natural places to begin to seek for potential
justification of regulation, and were created and are used for
that purpose. Unlike Scanlon’s theory, international law seems
in this respect quite clear and consistent. It states that you do
have the rightful freedom of expression to disseminate informa-
tion until the point at which your expression is an abusive in-
fringement on the rights of others. People have a right to be
protected by law against abuses of the type that constitute an
illegitimate interference with their liberty and are, consequently,
acts of domination.
Scanlon’s basic justification for the Millian Principle is that
one must respect people’s autonomy. Scanlon states that the
restriction on falsely claiming there to be a fire is compatible
with the Millian Principle, clarifying that his reason is the “rec-
ognized fact that under certain circumstances individuals are
quite incapable of acting rationally” (Scanlon, 1972: p. 220).
Additionally, he says that it is only in a far-fetched sense that
the people who are prevented from hearing the false shout
would be prevented from making up their own mind, the di-
minished capacity of the audience is brief and would apply to
anyone in similar circumstances, and there would be a unani-
mous consensus in restricting this expression.5 I’ll make two
points. First, while these may be good grounds for restricting
the expression, they could only not be so if the (likely) result of
the expression were harmful or damaging. When we have just
opened our eyes in the morning, we have a brief moment where
rational ca pacities are diminished, but that does not warrant the
restriction that no one be able to offer us a cup of coffee. At
least part of the justification for the rest riction on the e x p r e s s i o n
in question is that it will predictably cause false beliefs that will
lead people to think performing harmful actions are worthwhile.
Secondly, it is not true that everyone would agree with the re-
striction. For one, the man doing the shouting would not agree
to having his freedom of expression, as he might conceive of it,
being restricted in this way. There will also be a group of peo-
ple who might agree with him as a means to support their
vested interests, for instance, some newspapers owners who
might profit from the event or the owners of other theaters who
might see this event as giving their theaters a market advantage.
The supposed consensus that everyone would agree on this
restriction would only be among a group of people who want to
prevent lies or negligent falsehoods from having unreasonably
high human costs. In making a responsible decision one should
consider net human rights losses. In terms of autonomy, it can-
not be said that no expressions adversely affect it. One cannot
say that one is selling organic apples when they are full of DDT
or arse nic, without negative ly affecting the autonomy of people
fooled into eating them. And, conversely, one cannot legally or
acceptably launch a campaign to make people believe that a
company that sells organic apples actually sells apples full of
DDT or arsenic. Such contents of expression diminish the
autonomy of people, both individually and collectively. Further,
the integrity of the system of autonomous, efficient and just
decision making in the economic realm is in conflict with mis-
information. Fraud and false advertisement are good perma-
nently restricted expressions.6 While a consensus is too de-
manding a criterion, it is not unreasonable to suppose that the
vast majority of people will agree on this, and that the preven-
tion of fraud, defamation, assault, false advertisement, perjury,
plagiarism, is actually a government-backed enhancement of
autonomy. Expressions of these types illegitimately and ad-
versely affect the autonomy and human rights that democratic
governments should protect at all times. This makes the liber-
tarian conception of the right of freedom of expression appear
In correspondence, Noam Chomsky has indicated to me that
the Millian Principle is OK.7 This is quite coherent with other
things he has said on the subject. The division of the kinds of
expressions that Chomsky holds as relevant is that between
expressions one approves of and those one does not approve of.
The true defender of the right of freedom of expression, ac-
cording to Chomsky, holds that each person should be able to
express any content whatsoever he or she considers worth ex-
pressing. He says:
It is a truism, hardly deserving discussion, that the de-
fense of the right of free expression is not restricted to
ideas one approves of, and that it is precisely in the case
of ideas found most offensive that these rights must be
most vigorously defended. Advocacy of the right to ex-
press ideas that are generally approved is, quite obviously,
a matter of no significance (Chomsky, 1980).
For Chomsky, the legitimate existence of libel laws is ques-
tionable, so I will not focus on them here.8 However, what
should be uncontroversial is that fraudulent and other expres-
sions suggested to be in the no-go zone should not be tolerated.
What exactly constitutes fraud is well-understood for a portion
of cases. When an advertisement tells you that the company is
selling you apples, without telling you that they are poisoned
(or has failed to adequately check, when it does), it has com-
mitted a kind of fraud or false advertisement, and laws should
and do exist to give some legal protections for citizens to de-
fend themselves against this kind of deception. But similarly, if
a newspaper finds it profitable to deceive people into thinking
that a genuine organic apple company actually sells poisoned
apples, this should not be allowed. These are instances of views
whose expression are not protected by the right of freedom of
To just say that the right of freedom of expression allows
4Multilateral Treaties. Department of International Law. Organization o
American States. Verified 29 Aug. 2012,
5Scanlon (197 2 : p. 220) cites Dworkin (1971) for developing these criteria.
6More on related issues in Stiglitz (1999; 2000).
7Email correspondence, 16 October, 2011.
8Email correspondence, 16 October, 2011.
Copyright © 2013 SciRes.
anyone to make any expression in any context, especially in
those instances we disapprove of, unduly collapses what we
treasure as humans into one and only one all-extensive, but
self-undermining, human right that extends over all spheres of
action. This attitude, in light of the examples discussed, betrays
an absolutist moralism by assuming that the libertarian right
will always have a positive effect, when there are clear types of
cases where it does not. Further, the attitude exemplifies a mor-
alism of unbalanced focus by failing to look at the predictable
consequences of putting the Millian Principle into practice—
one of whose practical consequences will itself be a negative
effect on the right of freedom of expression. To illustrate, peo-
ple who were fooled into eating apples with arsenic by being
told that they were organic where denied their right to express
their genuine preferences and had their lives, and consequently
their opportunities for expression, illegitimately shortened. It is
clear that this argument, like any other, can be abused and one
must beware not to do so. But to put the libertarian conception
of the right of freedom of expression into practice is too blunt
to be close to respecting autonomy, free choice in a democratic
society and the right to know information of public interest.
Liberal Freedom of Expression
Scanlon’s 1979 theory of freedom of expression carves out
categories of expression which require different treatment, de-
termined by three kinds of expressive interests (participant,
audience, and by-stander interests) and by available forms of
regulation. Scanlon’s view is that:
while it is legitimate for the government to promote our
personal safety by restricting information about how to
make your own nerve gas, [it is] not legitimate for it to
promote our safety by stopping political agitation which
could, if unchecked, lead to widespread social conflict. I
do not think that my judgment in the latter case rests sim-
ply on the…idea of that the bad consequences of allow-
ing political controversy will in each such case be out-
weighed by the good… The difference [between the two
cases is] that where political issues are involved govern-
ments are notoriously partisan and unreliable. Therefore,
giving government the authority to make policy by bal-
ancing interests in such cases presents a serious threat to
particularly important and audience interests [...] (Scanlon,
1979: p. 534).
What is the relevant political speech? Scanlon says that it is
that which “has to do with the electoral process and activities of
government”. The other categories of content that are protected
are religious speech, sexual, and others that cannot be reliably
distinguished from them, and would consequently harm our
expressive interests (Scanlon, 1979: pp. 522, 534, 539). Since
Scanlon thinks that what he is doing in the 1979 modification
of his 1972 theory is to constrain the scope of his earlier theory
(Scanlon, 1979: p. 536), it seems that it must be that selected
categories are those to which the Millian Principle applies. This
is content-liberalism.
First, Scanlon’s approach has it that the theory should be
“consistent with our policy”, and therefore takes for granted
that the current information system is quite appropriate and,
consequently, that the status quo is the way things ought to be,
or pretty close (Scanlon, 1979: p. 550). I do not think this is so
and will come back to this issue. Secondly, Scanlon’s theory
implicitly hinges on a division of the relevant stake-holders as
that between people and the government. This division exists,
but it blurs important facts about the realities of power. In some
countries, it is private power that is most menacing against our
liberties and state action is the way in which oppressed groups
can enforce their rights. Some governments are elected pre-
cisely to challenge large dominating powers that have taken
over state and private levers of illegitimate power. We must
remember, for instance, that from Haiti to the Andes and the
United States it was the state that abolished slavery. Even
though the state had been an enforcer of slavery in the past, the
state played a significant role in the conditions that brought
about its abolition. In some cases, arbitrary power outside the
state is just as powerful as the state itself and is even able to
command the state through de facto means.9 Policy-makers
elected on the ticket of challenging those powers can hardly be
said to constitute the relevant powers against which people are
contrasted. If the media is owned by large vested interests in
maintaining a certain political lie, then a government by and for
the people will do right, subject to a standard of proof, to hold
those media companies accountable. Thirdly, laws against cer-
tain political deceitful information offer a way for people to
defend themselves against government abuse.
Let me first make the point about principle here by high-
lighting certain kinds of political expression that are undeserv-
ing of unlimited protection precisely because of their harmful
consequences: 1) Vote counters lying in an election about the
number of votes they count, leading to illegitimate leaders; 2)
Someone lying under oath that they saw Martin Luther King
murder an innocent white child; 3) Issuing racist threats that
impede the black vote or blacks running for office; 4) Lying to
the people and policy-makers as to why a country should go to
war with deceitful pictures and supposed eyewitness accounts
of threatening weapons of mass destruction; 5) Verbally threat-
ening a person so as to prevent her from running for public
office; 6) Defaming a political opponent through the lie that he
or she ordered the murdering of innocent civilians in order to
give the appearance of legitimacy to a coup; 7) In serious con-
versation with an assassin, saying “Kennedy and Castro are
pawns of communism. I’ll give you $1,000,000 to make it
worth your while to kill them next year”.
It might be objected that these expressive acts should be
banned, not because of their content, but because of the way
they are expressed. It might well be that whispering the wrong
vote-count when nobody hears or when it has negligible risk,
should not be restricted. But the way example 1 was put, is that
it actually leads to an undemocratic result, violating the right of
freedom of expression of voters. If the democratic system oper-
ated in such a way as to block this potential result in time, and
found the culprit, then it would seem correct to hold that person
accountable to justice. There should be institutional safeguards
against people who follow Stalin’s commonly attributed maxim
that “those who cast the vote decide nothing. Those who count
the votes decide everything”. Those who lie about the vote
numbers are the true violators of the right of freedom of ex-
pression of the people—not the people who would hold them
accountable. People who follow the liberal conception of the
right of freedom of expression would be barred from prohibit-
ing certain acts of election fraud, since if fraudulent political
9In capitalism, government is bought by the big market players (Ferguson,
1995; Lessi g , 2011).
Copyright © 2013 SciRes. 383
expression by certain people were to be realized, as might well
have been the case in the United States elections of 2000 and
Ohio of 2005 (Toobin, 2002; Crispin, 2005), then such agents
could never be held to account for stealing a democracy from a
country. On item 2 it seems clear that it is the expressing of the
content itself to defame Martin Luther King and the black lib-
eration movement under oath that is a problem. On item 3 it
seems clear that the content of the threat is what is problematic,
as it is, in effect, an unjust impediment to the exercise of the
right of free expression of blacks. Case 4 is troublesome pre-
cisely because of the deceitful content that would enable politi-
cians to go to war, having also as a corollary thousands of lost
liberties, of which the right of freedom of expression would
have to be included. Thus, on the decision side, it would create
a policy (going to war) that is not a true exercise of the right of
freedom of expression of the people the government is sup-
posed to represent; and on the receiving side of the war of ag-
gression, the thousands of murdered people would see their
rights of freedom of expression, along with every other right,
severely negatively and undeservingly affected by injury, dis-
ease and death. If there were no law to hold officials who lie to
go to war accountable, then you sever the rightful interests of
the nation from the interests of the politician, and wars of ag-
gression would become more frequent. It would not be a viola-
tion of George W. Bush’s right of freedom of expression to be
charged with murder because of the lies he used to bring about
the United States’ invasion of Iraq (Bugliosi, 2008). The viola-
tion here is not of Bush’s right to free expression—it is of the
thousands of Iraqis and US soldiers silenced by their wrongful
deaths brought about by the content of Bush’s statements. The
content of Bush’s expressions, because of their consequences,
is what makes them worthy of restricting. Case 6 is somewhat
controversial, but I think it is correct. Political opposition is an
expressive right that needs to be protected. The integrity of the
system of free competition is sustained by the reliability of the
system to track better political alternatives. This cannot be done
in a system where significant lying about opponents is pro-
tected—much in the same way that if it were acceptable for
companies to lie about their competitors, fair competition could
not be produced, whether by market standards or relevant al-
This issue will strike a chord with people knowledgeable of
Latin American politics, who understand that the media have a
played an important role in recent coups detat against democ-
ratically elected governments.10 This is not surprising, given
that the mass media in Latin America has frequently been born
with dictatorships, sometimes with CIA funding and infiltration,
and have hidden and supported massive human rights violations.
Today, the Inter American Press Association headquarters is
named after the US Pentagon and CIA intelligence officer,
Jules Dubois (Armoa, 2012; Kornbluh, 2003; Lagos, 2009;
Mönckeberg, 2009; Blaustein & Zubieta, 1998; Lacunza &
Becerra, 2012; Crewdson & Treaster, 1977). It will also strike a
chord with those who see the structural features of the US mass
media which have provided it with an enabling role for war and
rights violations against US official enemies (Chomsky &
Herman, 1988/2002). Any clear-eyed perspective on this reality
will have to confront the dilemma of whether or not democ-
racy-and-rights-undermining deceit should be checked by a
democratic state.
In correspondence, Chomsky has provided me with a slightly
weaker picture of the class of protected acts which should result
from a theory of freedom of expression.11 The relevant distinc-
tion, under his version of the liberal conception of the right of
freedom of expression, is not between statements one likes and
one doesn’t like, but between statements which form a part of
imminent criminal acts and statements which don’t. The right
of freedom of expression is the right a person has to make any
statement as long as that statement does not participate in an
imminent criminal act. Of course, one might object that even
Stalin would hold this view, since dissident statements of
whatever sort constituted, by the applicable laws, immanent
criminal acts. Consequently, this view seems to suffer from
Chomsky’s own critique of any conception of the right of free-
dom of expression that does not recognize the unqualified holi-
ness of content. Recall that Chomsky said that:
Goebbels was in favor of free speech for views he liked.
So was Stalin. If you’re really in favor of free speech,
then you’re in favor of freedom of speech for precisely the
views you despise. Otherwise, you’re not in favor of free
By the same standard, you might say in terms of statements
made as part of immanent criminal acts, that Goebbels was in
favor of free speech for those statements that are non-criminal,
and so was Stalin. If you are really in favor of free speech, then
you’re in favor of freedom of speech precisely for those ex-
pressions which constitute a crime. Otherwise, you’re not in
favor of free speech, the reasoning would incorrectly conclude.
The reasoning engages in absolutist moralism since it pre-
sumes that the ideals of the right of freedom of speech will be
achieved by the state never intervening in the content of ex-
pression just as it might interfere to block poisonous apples
from entering the market. Disregard for the predictable conse-
quences of cases 1-7, undermining the very functions that give
the right of freedom of expression value, reveal a moralism of
unbalanced focus.
Democratic Freedom of Expression
This section progressively descends from some proposed as-
pects of democratic theory to the proposed conception of the
right of freedom of expression. The democratic freedom of
expression starts by recognizing that everyone’s human rights
are the same and must consequently be given equal considera-
tion. In giving people’s human rights equal consideration, at-
tention must be given to whether there is domination in the
relations that exist in society. When there is domination, it is
legitimate to intervene to abolish it. The freedom that comes
with individual and collective autonomy, entails responsibil-
10In the Venezu elan cas e, for ins tance, th e media was t he mo uthpi ece of t he
rise of the brief business and military dictatorship of 2002. The coup plot-
ters publicly thanked the media when they thought they had ousted Chávez.
The media justified the coup by falsifying footage to supposedly show a
Chávez supporter shooting innocent civilians. See Jones (2007), Bartley and
O’Briain (2003), Palacios (2004), Fairness and Accuracy in Reporting
(2002). In September 2010, President Rafael Correa of Ecuador was gased
and shot at in a police revolt that called for his assassination. He took refuge
in a hospital (Muñoz, 2011). The media propagated the idea that this was a
minor exercise in the freedom of expression of a sector of the population
(Paz y Miñ o, 2011).
11In email correspon dence, October 16, 2011.
12Appears making the statement in Achbar and Wintonick (2002).
Copyright © 2013 SciRes.
ity.13 Thus, liberty is not an arbitrary power, but an accountable
one. The democratic state is an effective instrument for pro-
tecting and fomenting human rights, abolishing domination.
Such a state exemplifies the democratic ideal of equal consid-
eration in the vote, whose spirit is the supremacy of the public
interest over powerful religious, royal, military, capitalist, party
or other special interests.
The natural application to the right of freedom of expression
is that everyone has this right equally and that this right comes
with the responsibility to respect the rights of others. When
expression is an instrument of domination, it is outside the
scope of this right, it infringes on the rights of others, which
must be given equal consideration, and it is necessary to hold
the agent that propagated the expression responsible by stan-
dards of justice.
A very good system for giving everyone equal consideration
is the democratic one. This practice is designed to approximate
the principle of affected rights. The rights-based approach has it
that voting is designed to approximate the principle that people
whose rights are at stake in a matter are the ones who should
participate in the decision-making process associated with it.
Rights have the rights of others as their common boundary and
transgression of these boundaries is an act of domination.
Rights are legitimate liberties, which are the kinds of liberties
worth protecting and fomenting, and are consequently the kinds
of liberties we refer to below. Here, the degree to which there is
liberty in a population is inversely proportional to the degree to
which there is domination.
Liberty with Interference
One of the most emphasized elements of the republican the-
ory of freedom and government is that interference, even coer-
cive interference, is not always a real reduction of freedom and
that sometimes there is non-interference in the absence of free-
dom (Pettit, 1997). This is one of the features that distinguish
republicanism from liberalism, which holds, in Bentham’s
words, that “no liberty can be given to one man but in propor-
tion as it is taken from another. All coercive laws, therefore...
and in particular all laws creative of liberty, are, as far as they
go, abrogative of liberty” (Bentham, 1843: p. 503 cited in Pettit,
2009). The thesis that sometimes coercive interference contrib-
utes to liberty, is classically illustrated by the story of Ulysses
interfering in various ways so that the sirens do not deviate his
ship from its destiny. A more contemporary example illustrat-
ing the thesis is that of appropriate traffic regulation, backed by
penalties for non-compliance. A good reason for the penalties is
that they will tend to override people’s temptation to run a red
traffic light. Such measures can hardly be said to curtail the
human right of freedom of movement. Quite to the contrary of
considered alternative views, such short-term limits of move-
ment in the considered cases enable the right of movement to
be most effectively realized, thus contributing to freedom. It is
a condition to enable Ulysses and lawful drivers to get to their
destination in the fastest, safest, and most coordinated way. In
the republican mode of thought, barring other possible interfer-
ing circumstances, Ulysses and the drivers are not dominated
by an external source of arbitrary power. As Blackstone says in
his 1765 Commentaries on the Laws of England, republicanism
holds that “laws, when prudently framed, are by no means sub-
versive but rather introductive of liberty” (1978: p. 126). Right-
ful freedom, the kind of freedom that is relevant, is freedom
with brains.
The democratic republican will interfere where government
is needed to eliminate domination, the opposite of rightful
freedom, and will use majority rule to do it. It may well be
necessary at times to go deep, to “go into people’s bedrooms”,
for instance, to eliminate marital rape. In practice, this idea can
be abused and we must guard against its being used for arbi-
trary interference, which would be a form of domination.
Condorcet’s (1785/1972) and Arrow’s (1951/1963) impossi-
bility theorem may give the impression that majority decisions
are arbitrary, and consequently constitute acts of domination.
Dilma prefers A to B and B to C; Rafael prefers B to C and C
to A; Hugo prefers C to A and A to B. Each person will express
their preferences in their vote, pitting two options first, and the
winner of that vote with the remaining option, second. This
class of preferences does not yield a consistent aggregate ma-
jority decision which can represent the common good and the
ordering can be manipulated to yield the false appearance of an
authentic majority preference for any option. Very skeptical
attitudes about majority government can be adopted in light of
this truth. For instance, Rousseau’s contention, under one in-
terpretation, that the general will tracking the common good is
expressed by the balance of pluses and minuses with respect to
a decision (Rousseau, 1762/2008: p. 34), seems inapplicable.
But what the theorem actually proves is that there is a class of
combinations of ordered preferences which do not uniquely
express a social welfare function. This class, however, is very
small with respect to the field of decision space to which ma-
jority rules can be applied, and constitutes only a small cost to
the power of majority rule for representing the common good.
For comparison, our visual system has an area of the visual
field that is “filled in” because of the blind-spot generated by
the optical nerve entering our eyes (Ramachandran, 1992). In
this space, our eye cannot be said to be genuinely detecting the
external properties we seem to see. Instead, our brain fills in
this space. But no one would recommend that we stop using the
visual system to represent the world and guide our behavior.
Likewise, that for some small portion of possible cases (Tan-
gian, 2000; Mackie, 2003; Shapiro, 2003) majority decisions
are filled in is an affordable price, given the alternatives and the
general capacity of majority government to represent the com-
mon good.14 Rather than get stuck on a decision not based on
picking up the properties of the common good or give the reins
of power to a dictator, the majority fills in those places where
voting cycles occur and otherwise reliably track the common
good in the rest of the decision space.
Madison, one of the prime architects of minority veto-powers
of the founding fathers of the state of the US, after having the
experience of a lifetime in high-office, took his famous design
back when he said:
If majority governments as such, be the worst of govern-
ments, those who think and say so cannot be within the
13Although today’s conceptions of autonomy and freedom can never be as
metaphysically robust as Kant’s (1964/1785), that they be conditions for
self-determination that confer responsibility for an action should be re-
flected in any theory that values freedom and autonomy (Kane, Fischer,
Pereboom, & Vargas, 2007).
14Tversky (1969) has argued that individuals have this kind of irrationality.
Regenwetter, Davis-Stober and Dana (2011) dispute this. But even if Tver-
sky were correct that individuals under certain circumstances are system-
atically irrational, this isfar from showing wholesale irrationality and the
unreliability of our psyc hology, as argued by Hilary Kornblith (1993).
Copyright © 2013 SciRes. 385
pale of the republican faith. They must either join the
avowed disciples of aristocracy, oligarchy or monarchy,
or look for a Utopia exhibiting a perfect homogeneous-
ness of interests, opinions & feelings nowhere yet found
in civilized communities (Madison, 1833/1834).
While Madison’s democratic credentials are tainted with his
participation in slavery, an issue that reportedly troubled his
perspective on the nation (McCoy, 1989: p. 252), his rejection
of the idea that the best government is that which cancels out
majority decisions with minority vetoes, provides some ground
for democratic optimism. To let minorities veto majority rule is
to in effect strongly bias the status quo and the de facto powers
that entrench it. With the great problems of our time, letting the
entrenched non-democratic powers continue to determine the
way our society functions is a great irresponsibility. From an
empirical standpoint, majority governments have typically been
the most respectful when it comes to individual and minority
rights (Shapiro, 2003a).
Contrary to content-libertarianism and liberalism, certain
regulation in content may likewise further free and fair discus-
sion and expression, this being so because majority rule will be
able to track the genuine common good in this realm more re-
liably. In turn, the general will identified through majority rule
must be based on truth, and for this, adequate epistemic condi-
tions need to be in place. As Madison famously said:
A popular government without popular information or the
means of acquiring it is but a prologue to a farce or a
tragedy, or perhaps both. Knowledge will forever govern
ignorance: And a people who mean to be their own Gov-
ernors, must arm themselves with the power which
knowledge gives (Madison, 1822).
So, what are the best mechanisms for securing this condition?
One proposal is the marketplace of ideas. The democratic con-
ception of freedom of expression will analyze and build from it.
Non-Interference without Liberty
That “the marketplace of ideas” is the best mechanism for
securing individual and collective autonomy and a knowledge-
able citizenry, approximating adequate capacities of good deci-
sion-making and representing the common good, is a prima
facie plausible idea and a key proposal for the treatment of the
right of freedom of expression. For some sections of opinion,
such prescriptions cohere with a general distrust of the state’s
ability to do good, be efficient, just, and be party to truth. In
fact, the idea takes root in some popular conceptions of modern
economics that hold that minimal state participation produces
efficient results. When put this way, a market free of an active
state role produces efficiency, typically measured in terms GDP
growth, but can also include poverty reduction and human de-
velopment. In the realm of expression, a market of ideas very
free from an active state role produces efficient results selecting
for the expressive basis of autonomy, knowledge and good
political decision-making. The story is attractive, but hides just
as important aspects of what an efficient economy worth having
Minimally, the neoliberal experience should be a warning
against the completeness of this picture. It hides the role that
the state must play in development, in not letting economic
elites take oligarchical or monopoly power over some sectors of
the economy and not let those elites take over the informational
and political system, undermining democracy. In a democracy,
it is people who rule; not capital. Failure to act on this has led
to a very negative influence on economic development itself,
economic growth, employment, has increased poverty and ine-
quality, and has decreased human development, freedom and
rights in countries as diverse as the United States, Chile, Ecua-
dor and Argentina, and far beyond (Kornbluh, 2003; Lagos,
2009; Sen, 1999; Weisbrot & Ray, 2011; Chang, 2007; Baker,
2002; Meller, 2000). Failure to act on the idea that people should
govern rather than capital, has led to a real reduction in freedom
of expression in Ecuador, for instance, because most of the
media has been largely owned by banks (Checa Godoy, 2012).
The right of freedom of expression, particularly of the press,
is of course a key instrument when it comes to attaining truths
of public significance. But we can ask whether the market
model of the press, a concrete corollary of a natural reading of
“the marketplace of ideas” thesis, is efficient with respect to
truthful states of mind about matters of public interest and
which affect people’s autonomy. Here the market model does
not measure up very well. Curran, Iyengar, Lund and Salova-
ara-Moring compared the US media market model with the UK
media mixed model, and the Finnish and Danish public service
model of the media, with respect to how well informed inhabi-
tants in each of these different media environments were about
the world in which they live (Curran, Iyengar, Brink Lund, &
Salovaara-Moring, 2009; Aalberg, Aelst, & Curra n, 2010). They
found the market model to be the worst performer with respect
to producing any kind of knowledge and found that it is par-
ticularly bad, when compared with the others, at maximizing
knowledge of public interest among the population. In this
study, the political questions of public interest were relatively
straightforward. For example, one of them asked the participant
to name the president of France. Incidentally, 67% of US re-
spondents got the answer to this question wrong, even with the
advantage of having multiple choice options (Curran, Iyengar,
Brink Lund, & Salovaara-Moring, 2009). This kind of easy
“hard news” question was significantly better answered by the
public where the media regime was more public service ori-
ented and less market-driven.
The most powerful and the most active country in interna-
tional affairs had the least proportional foreign news coverage.
The most covered issue was Iraq (47% of international news,
which was 20% of total news) (Curran, Iyengar, Brink Lund, &
Salovaara-Moring, 2009), an issue about which the public has
been deeply deceived, in the service of promoting a war with
massive human rights violations (Fairness and Accuracy in
Reporting, 2007; World Public Opinion, 2004, 2006).15 This
fact confirms, again, Chomsky’s and Herman’s Propaganda
15This analysis is very much in line with what Russell theorized when he
said: “Since the running of a big newspaper requires a large capital, the
roprietors of important organs necessarily belong to the capitalist class,
and it will be a rare and exceptional event if they do not sympathize with
their o wn class in opini on and outlook . They are able to decide what new s
the great mass of newspaper readers shall be allowed to have. They can
actually falsify the news, or, without going so far as that, they can carefully
select it, giving such items as will stimulate the passions which they desire
to stimulate, and suppressing such items as would provide the antidote. In
this way the picture of the world in the mind of the average newspaper
reader is made to be not a true
icture, but in the main that which suits the
interests of capitalists” (Russell, 1918/2002: p. 95). It is also very much in
line what Oscar Romero, the Salvadoran liberation theologian, explained
before being killed by right-wing death squads in 1980: “It is a pity that we
have a me dia sy stem so sold out to the cond i tio ns. I t i s a pi t y t hat one c anno t
trust the news of the newspapers, the television and the radio because eve-
rything is bought, everything is rigged, and truth is not told”.
Copyright © 2013 SciRes.
Model of the US media, which predicts, given the economic
and institutional structure of that information system, that the
media will largely disseminate information that serve the inter-
ests of certain economic and military groups at the expense of
the public interest and human rights (Chomsky & Herman,
1988/2002). This is, of course, an act of domination against the
people, severely negatively affecting autonomy, knowledge and
democratic decision-making.
“Non-intervention” on expression is a choice that favors the
players and views that dominate the communication space to-
day. In some instances the source of this status quo is anything
but legitimate—one example of this, is that El Mercurio of Chile
would not have the kind of media and market power it has were
it not for the CIA and dictatorship financing and approval
(Kornbluh, 2003; Crewdson & Treaster, 1977). Non-interven-
tion in similar cases, including cases where media companies
have been instruments of coups against democratic govern-
ments, amounts to a form of domination (Jones, 2007; Bartley
& O’Briain, 2003; Palacios, 2004; Fairness and Accuracy in
Reporting, 2002; Muñoz, 2011; Paz y Miño, 2011; Miguel Ar-
moa, 2012; Kornbluh, 2003; Lagos, 2009; Mönckeberg, 2009;
Blaustein & Zubieta, 1998; Lacunza & Becerra, 2012; Crewd-
son & Treaster, 1977). Adequate democratic intervention in
such cases makes responsibility effective. A classic example in
the non-domination literature is that of the slave who has
learned the desires of his master so well, that the master need
not intervene in the behavior of the slave. Nevertheless, the
master holds an arbitrary and illegitimate power over the slave,
amounting to a form of domination. In such cases where domi-
nation is the status quo, the state may intervene to abolish it.
The present consideration unveils a certain naiveté or bias
towards the status quo on the part of the Inter American Com-
mission for Human Rights Freedom of Expression Rapporteur-
ship for claiming that while journalism needs to be ethical, the
state cannot make policy to ensure it and that any state-led ini-
tiative to tilt the expressive system towards truth and public
service goes against the right of freedom of expression.16 In-
deed, this is like reiterating the falsehood that the state does not
have a role in securing economic efficiency and human rights.
One feature of the irony of free speech that Fiss noted is the
fact that scarce space for expression means that more actual
expression is less of other potential expression (Fiss, 1996).
The natural conclusion that Fiss drew was that while the state
can harm freedom of expression, it can also have a legitimate
role in affecting content so that there is a genuine democratic
discussion of issues of public interest. Applying this idea to the
facts on the ground, one may note the further irony that the
scarce space of communication is so frequently dominated by
views so effective at threatening and undermining human
autonomy, democratic decision-making and the right to know
crucial matters of public interest.
The Millian idea that the people should allow media carte
blanche to say whatever they wish and that from that we can
decide on issues for ourselves is in this context deeply naïve,
because it effectively leaves the microphone in the hands of
people who deprive the public of vital information and spin
information towards human rights abuses. This non-interfer-
ence by a democratic power has not worked in the interests of
liberty and has involved much domination, adversely affecting
individual and collective autonomy, informed decision-making
in democracy and the right to know facts of public relevance. It
is therefore a legitimate place for democracy to exercise its
rightful and intelligent power to abolish this tyranny.
Democratizing Content
Several features of a media system supporting, rather than
hindering, autonomy, informed democratic decisions and know-
ledge of public issues, and thus fulfilling the requirements of
the right of freedom of expression, can be noted. One is that the
empirical evidence shows that a robust public service media is a
crucial component of a society that values the right of freedom
of expression. In a dictatorship, the media financed by the state
may be subservient to interests undermining the right of free-
dom of expression. However, in a society with greater democ-
ratic institutions, public service media enhances rather than di-
minishes the fulfillment of the right of freedom of expression
(Curran, Iyengar, Brink Lund, & Salovaara-Moring, 2009;
Aaelber, Aelst, & Curran, 2010).
It is important to eliminate the conflict between serving
business interests and providing information for adequate de-
mocratic decision-making. The fact, for instance, that there
should be mass media companies in the United States owned by
arms companies (such as GE and Westinghouse) and financial
elites that profited from the economic mismanagement of the
recent years, can only seem coincidental to the naïve. Better
information would have made making war and building an $8
trillion bubble more difficult. There are other features, such as
limiting the market share a media company or conglomerate
may have. An experiment being tried in some countries of
South America is to divide the television and radio electro-
magnetic spectrum into three equal parts, those being for pri-
vate, public and community ownerships. Regulation in cam-
paign finance so that people can really be autonomous knowl-
edgeable agents participating rationally in the democratic proc-
ess, rather than be manipulated by the moneyed or other inter-
ests, is a feature of conditions that truly honor the right of free-
dom of expression. A system where rational choice theory is
made Ptolemaic, as Ferguson (1995) has described it as applied
to the US political system,17 is one which undermines, rather
than respects, the right of freedom of expression of people.
There are various alternatives within this option (Lawrence,
2011; Rowbottom, 2010), but the driving consideration is that
autonomous self-determining people do the talking, rather than
peopled flooded by party propaganda or the interests of capital-
ists. This is true autonomy and self-determination.
The democratic conception of freedom of expression recog-
nizes the following territories of expression as legitimately
restricted: false advertisement, perjury, fraud, medical opinion
constituting malpractice, academic plagiarism, electoral decep-
tion, or expressions that result in murder, either by the hiring,
ordering or fooling of someone in such a way that it leads, in-
tentionally or negligently, to illegitimate death, or by intention-
ally and illegitimately causing grave harm to another with the
use of expression—such as kindly offering (poisoned) coffee as
an expression of political dissent. Such acts are against the
rights of people and therefore constitute acts of domination,
17Although Citizens United v. Federal Election Commission is not as radical
as it is sometimes made out to be (Levitt, 2010), it is another recent brick o n
the wall that serves to keep knowledgeable, rational and autonomous ex-
pressions of t he people from controlling their state.
16Principles 6 and 7 of the Principles of the Right of Freedom of Expression
of the Inter American Commission on Human Rights.
Copyright © 2013 SciRes. 387
undermining autonomy, democracy and knowledge. It is for
this reason that towards the end of the Universal Declaration of
Human Rights, Article 29 says that “In the exercise of his rights
and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order
and the general welfare in a democratic society”.
Similarly, Article 13 the American Convention on Human
Rights restricts expressions that infringe on the rights of others,
constituting propaganda for war or hate speech. The more con-
troversial sorts of limits on the right of freedom of expression
are honor and national security. These issues have to be dealt
with carefully because of the risk that they be abused against
the rights of others. One fundamental way in which the values
that uphold the right of freedom of expression are secured is by
vigorously defending the right to criticize the actions of others,
whether in public office or not. A strong investigative press,
with strong guarantees, is required for expressive action against
domination. There are also easy cases that avert us to the abuse
of this freedom. It is easy to think of a case where a person de-
cides, with a deep, connected and communicative pocket at
hand, to ruin the honor of another for no good reason, resulting
in unjust social, psychological and economic pain. While there
need to be measures to avert the possibility that powerful
groups abuse libel laws to eliminate legitimate opponents with
a robust and competent public defense system, people need to
have good protection against libelous kind of domination.
New York Times Co. v. Sullivan established the importance
for being guilty of libel of actually malicious intent of false
damaging statements against someone. However, this is con-
sistent with rules that make democracy work, in symbiosis with
autonomy, informed decision-making and knowledge. In the
case of commercial markets, lies and negligent falsehoods by a
company to make people believe that their adversary is selling
poisoned apples as organic ones, is reasonably disallowed.
Groups competing for political power in the democratic process,
whether directly or indirectly, should be subject to the same
honesty constraints, if the decisions by voters are going to truly
express their autonomous non-manipulated views. The libertar-
ian and liberal conceptions of freedom of expression, however,
could never condemn a malicious lie to hurt a legitimate market
or political competitor, and secure basic rules that ensure the
integrity of economic and political competition.
A recent and much-publicized case involved the president of
Ecuador, Rafael Correa, who sued Emilio Palacio for lying in
one of Ecuador’s biggest daily, El Universo. Palacio (2011)
wrote that Correa, “the dictator”, had committed “crimes a gain st
humanity” by “ordering shooting against a hospital full of civil-
ians and innocent people”. It is, of course, of public concern if a
head of state has committed crimes against humanity. But Pala-
cio was given all the opportunities to show a shred of evidence
for his strong statement of public interest, but constantly said
that support for his statements was “not the issue”. The real
issue, according to Palacio, was his right to say whatever he
wanted. Human rights NGO’s and, both national and interna-
tional media, generally defended what they termed Palacio’s
and El Universo’s right to express their view. Expression with
malicious intent, which was given documentary support in the
accusation, and its effect on what is treasured in the right of
freedom of expression, and the right against abusive attacks on
one’s reputation, were not considered.18 In the political realm
this is important precisely because people vote for politicians
based on their reputation with respect to whether they will ad-
vance their rights and well-being, and thus worthy of authoriz-
ing their representation. We can see from this that they seem to
have employed the libertarian and liberal conceptions, rather
than the democratic one.
Perhaps the foregoing discussion has elicited the suggestion
that the proposal made here is restrictive. However, the stan-
dards used have strong implications for the duty of the state to
release information of public interest and the right of journalists
to publish it. It is not legitimate, on national security grounds,
to hide information about the crimes that the state and its agents
commit in the name of the people. To hide such information is
an act of domination against the people the state represents
since the state is violating their right to control government and
their right and responsibility to respect the rights of others. It is
also, of course, an act of domination against the victims of the
crime. Such acts of domination reduce autonomy, knowledge
and informed decision-making in democracy. The people that
reveal such secret crimes are protected by the right of freedom
of expression.
The libertarian, liberal and democratic conceptions of the
right of freedom of expression would all imply protection for
people who use their freedom of expression to reveal crimes
and operations of public interest of the state. There is, for in-
stance, no legitimate reason for a state to hide that it bombed
North Vietnam, Laos and Cambodia before the public knew
about it, as the Pentagon Papers revealed, or that a president
was expanding the war on Vietnam when he was telling the
public that there is no such intention or that the war on Vietnam
officially begun based on deceit about the Tonkin Gulf incident
(Martin, 2003: p. 11). It is, of course, in the interests of auton-
omy, informed decision-making and public knowledge that
people find out that while their government was denying that
there was a coup in Honduras in 2009 (McLean, Shane, & Tse,
2011), their ambassador was internally saying that it was (Nai-
man, 2010 )—which is tantamount to attempting to provide
international political cover for the subversion of democracy
—and it is in the people’s expressive interest that they find out
that their states’ grounds for war were not true and that it is
murdering people in Iraq in their name (Wiki Leaks, 2010).
This is a national security issue, but for Laos, Cambodia, Hon-
duras and Iraq, whose rights are served by having the informa-
tion be expressed. For the United States, the national security
issue is that the rights of the people are being violated by a state
that does not reflect their legitimate interests and therefore their
democratic nation is threatened. Thus, for the United States it is
in the interests of national security that the Pentagon Papers and
Wiki Leaks be expressed. For the perpetrating state, th ere is not
legitimacy in secrecy, just as there is no legitimacy in a mur-
derer owing a gun, which a responsible citizen is correct to
“steal”, as Daniel Ellsberg and Bradley Manning did. This
means, for instance, that they, along with Julian Assange, and
organizations like Wiki Leaks, are bastions of the right of free-
18See for instance, Human Rights Watch (2011); Washington Post(2011);
l Universo, 2012 offers a catalogue of papers that republished the lies o
Palacio’s article, for freedom of expression. Palacio and El Universowere
declared guil ty, which c arried a disproportionately large fine and a jail t erm.
Correa pardoned them and the penalties were voided and not executed. In
the spirit of this paper, I think Palacio and El Universo should have hadto
incur a proportionate cost geared towards appropriate reparations for the
damage they inf licted.
Copyright © 2013 SciRes.
dom of expression that need to be protected. Interestingly, gen-
erally the mass media has been quite aggressive against As-
sange. The mass media did the same as he, which was to make
the information public (except when it touched their interests
(Lacunza & Becerra, 2012)), because it was a scoop too big to
leave to the competitors, but adopted a hostile position at the
first opportunity. The dominant narrative became that he is a
sex assailant information thief, granted asylum by a repressive
nation, who will pay a just price for its lack of obedience to
global powers (e.g. El Comercio, 2012; EFE & El Universo,
2012; Washington Post, 2012; Vargas Llosa, 2012 The Econo-
mist, 2012; Córdoba, 2012; Naureckas, 2011). Taking into ac-
count that the Iraq war was a corporate media driven event, it is
easy to conclude that these powers defend, in their actions, their
supposed right to dominate, frequently at the cost of the three
pillars of values that uphold the right of freedom of expression.
The law in democracy should protect the people’s right to
freedom of expression.
Libertarian and liberal freedom of expression advocates must
make a decision about whether they just care about the idea of
anyone being able to say whatever they want, letting the chips
fall where they may, with no regard to the relations of power
and whether the subsequent consequences undermine their
simple categorical imperative, or whether they care about the
protection and enhancement of human rights and the values that
actually sustain the a right of freedom of expression worth
having. The democratic theory of freedom of expression says
that people have the right to express any view they may wish to
express that does not constitute an act of domination against
another. The right of freedom of expression is for abolishing
domination, not for enhancing it. The effective idea that the
right of freedom of expression is that a person can say whatever
she wishes for whatever reason or lack of reason, and in what-
ever context, including deceit that costs us our human rights is
very much like the argument of white male slave-owners who
argued that abolishing slavery would violate their constitutional
and human right to property. There have, of course, to be limits
to the right of ownership of a person, and those are the rights of
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