Free Speech Glossary
Absolutism: The position that the right to free speech is absolutely inviolable. It requires that speech be separated from conduct when the two are often intertwined. A true absolutist would not even regulate the solicitation of murder as it arguably involves only communication, which should be protected, and no action.
Balancing Theory: The idea that free speech is a social interest that must be weighed against other social interests, such as social cohesion, majority-held morality, and the like, and that speech is only protected if it passes a cost/benefit analysis. The theory tends to undermine freedom of speech because the costs of (say, offensive) speech are likely to be immediate whereas the benefit of free discourse is best seen over long time scales.
Blasphemy: The crime of insulting or showing contempt for God. Blasphemy is still illegal in New Zealand but prosecutions can not be undertaken without the permission of the Attorney-General.
Breathing Space: The “breathing space” concept requires that some speech otherwise without merit is protected because restricting it could have the side-effect of restricting speech deserving of protection. For example, libel plaintiffs must prove that the defendent knew that a statement was false or had reckless disregard for whether the statement was false or not. The result is that some libellous speech gets protected because this is preferable to punishing non-libellous speech. See also the precision principle.
Causation Principle: One the major principles of American First Amendment jurisprudence. This principle holds that for the harm principle to be used there must be a direct causal relationship between the speech that is restricted and the harm caused.
Chilling Effect: The self-censorship that occurs when someone fears the actions of another. A government may find it difficult to pass explicit censorship laws but if it has other powers that it can exercise against organisations that don’t toe the line those organisations may censor themselves to avoid negative consequences. If, for example, anyone who criticised the government became subject to a tax audit this could exert a chilling effect on their speech.
Defamation: Making of statements that may harm a person’s reputation. It is widely accepted that the right to free speech does not include the right to make false statements that may be damaging to a person’s reputation.
Emotion Principle: One the major principles of American First Amendment jurisprudence. This principle holds that the emotional content of speech is protected as well as the rational or intellectual content. Shock value doesn’t justify a ban; the emotion principle protects most “offensive” speech.
Harm Principle: One the major principles of American First Amendment jurisprudence. This principle holds that the government may ban speech that causes harm. The harm must be palpable, such as physical harm (banning solicitation to murder) or relational harm (banning libel or copyright violation), rather than reactive harm such as emotional distress or offence taken at vulgarity.
Historicism: The position that the extent of the right to free speech is defined by the original intent of the framers of the document that outlines the right (usually used in the context of the US Bill of Rights). The position is weakened because there were multiple people with differing ideas involved in framing these documents, their views changed over time, and it requires an element of mind-reading.
Libel: Defamation in a permanent form, such as in writing.
Marketplace of Ideas: One of the main theories of free speech. The theory was first given form by US Supreme Court judge Oliver Wendell Holmes, Jr., who claimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Neutrality Principle: One the major principles of American First Amendment jurisprudence. This principle holds that the government must have a neutral point of view when applying limits to free speech - it cannot ban one viewpoint and not another.
Parliamentary Privilege: The right to free speech for Parliamentarians, first introduced in the English Bill of Rights 1689. The free speech rights granted by parliamentary privilege are broader than general free speech protections; for example, a speaker protected by privilege cannot be sued for slander. By convention, people covered by parliamentary privilege are bound not to use “unparliamentary language“. In New Zealand, parliamentary privilege covers not just parliamentarians speaking in the chamber but also people giving evidence to select committees.
Precision Principle: One the major principles of American First Amendment jurisprudence. This principle holds that laws restricting speech must be precise so that they don’t restrict any protected speech or encourage self-censorship. The principle requires that speech is not restricted in borderline cases.
Prior Restraint: Censorship of material before publication, often exercised as the requirement to get a licence or government approval before anything can be published. Early theories of free speech simply required a lack of prior restraint - material deemed undesirable could still be punished.
Reactive Harm: Actions that cause a negative emotional response. Those claiming to have been “harmed” often call for restrictions on speech that causes reactive harm. Since reactive harm is generally a function of the individual claiming to have been harmed rather than the content of any speech that allegedly caused it, recative harm should not be a justification for restricting speech. Examples include hate speech and obscenity. See also the harm principle.
Relational Harm: Actions that cause damage to relationships, whether social or commerical. Relational harm is often seen as a justification for restricting speech. Examples include libel, false advertising, trademark infringement, and disclosure of confidential information. See also the harm principle.
Sedition: The crime of bring the government into hatred or contempt or inciting the disruption or overthrow of the government. Sedition is still illegal in New Zealand and been successfully prosecuted recently. The Law Commission has called for the repeal of New Zealand’s sedition laws.
Slander: Defamation in a transitory form such as speech.
SLAPP: “Strategic Lawsuit Against Public Participation” - a vexatious lawsuit filed to intimidate someone who is speaking out.
Speech Rationing: Restrictions on what people are allowed to say or who is allowed to speak during an election campaign. Often known more innocuously as “campaign finance reform”. Vague fears of “corruption” are whipped up and then “reforms” are put in place to quash dissent.
Symbolism Principle: One the major principles of American First Amendment jurisprudence. This principle holds that free speech protection isn’t limited to language but also covers symbolic acts (flag desecration being the classic example).
