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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
ABSTRACT
This research paper tackles the human right aspect of the free-
dom of speech. It examines the background context of a human 
right, and how it evolves through the use in concrete cases. To 
determine the limits of legal argumentation in regard to the men-
tioned context of freedom of speech as a human right, we ana-
lyzed cases that revolved around freedom of speech. The analysis 
provided us with the insight into the conceptual understanding of 
freedom of speech as a human right through the eyes of a judge. 
The structure of arguments showed how the background con-
text of a human right of freedom of speech can be determined. 
Freedom of speech is not only a human right that is separatated 
from the greater legal framework but is, in fact, a human right that 
needs to be established again and again through the argumenta-
tion of judges and through the applicative use in society. The 
balancing through legal argumentation shows how far protec-
tion and restriction can go. Freedom of speech as a human right 
is no different in this aspect. It is an universal right that can be 
observed through the arguments of a court and can be put into a 
context behind it.
Keywords: Human Rights, Freedom of Speech, Restriction, Pro-
tection, Universal Right
Is Freedom of Speech Underrated? 
The View from a Perspective of 
Human Rights
Blaž Marinčič Udvanc*
* 
PhD (European Faculty of Law, New University).

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DIGNITAS ■ Constitutional Law
Ali je svoboda govora podcenjena? 
Perspektiva iz vidika človekovih pravic
POVZETEK
Znanstveni prispevek obravnava svobodo govora z vidika člo-
vekove pravice. Raziskava je bila usmerjena na osvetlitev ozadja 
človekove pravice svobode govora in njen razvoj skozi uporabo 
v konkretnih primerih. Z namenom ugotoviti meje pravne argu-
mentacije v zvezi z omenjenim kontekstom svobode govora kot 
človekove pravice, smo analizirali primere, katerih skupna rdeča 
nit je bila svoboda govora. Analiza nam omogoča vpogled v kon-
ceptualno razumevanje svobode govora kot človekove pravice 
skozi oči sodnika. Struktura pravnih argumentov znotraj sodnih 
odločitev je pokazala, kako je mogoče določiti kontekst v ozadju 
človekove pravice svobode govora. Svoboda govora ni le člove-
kova pravica, ki bi bila ločena od širšega pravnega okvirja, ampak 
je v svojem bistvu človekova pravica, ki jo je treba vedno znova 
interpretirati skozi pravno argumentacijo sodnikov glede na rabo 
v družbi. Sodniško tehtanje skozi pravno argumentacijo kaže, 
kako daleč lahko sežeta tako varstvo pravice kot njena omejitev. 
Pri tem svoboda govora kot človekova pravica ni nič drugačna 
kot ostale človekove pravice. Gre za univerzalno pravico, ki jo 
je mogoče opazovati skozi argumente sodišča in postaviti v kon-
tekst, ki stoji za njo.
Ključne besede: Človekove pravice, Svoboda govora, Ome-
jitve, Zaščita, Univerzalna pravica
1. Introduction of the topic
Have you ever felt the need to express something but were dis-
couraged by the thought of backlash that your spoken thoughts 
would bring? This is not something out of the ordinary, as we 
come into such dilemmas more often than not. To question one-
self what is appropriate to voice out and what is not may prove to 
be a difficult task; a task that is as meaningless as it is meaningful. 
If we position ourselves according to the view that every speech 
is admissible then it is meaningless to burden oneself with the 
task of sorting the thoughts into those that can be voiced out 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
loud and those that cannot. A contrasting outcome awaits if we 
separate valid thoughts worth voicing out from those that would 
be heedless once spoken out loud. In such an approach it would 
prove meaningful to choose the thoughts carefully before they 
are spoken.
Let us put aside the common decency that should be a part 
of our interactions with others and focus solely on the aspect of 
speech. Why is this an important factor? When interacting with 
others, we tend to follow a basic level of politeness; this also var-
ies depending on the individual, as some follow ethical courtesy 
to a further extent than others. Our communications with the 
members of society are characterized by a number of factors, but 
we will not go deeper into this as we are more interested in the 
legal aspect of the content that such communication contains, 
rather than the given respectability of the communication itself. 
Why is this the case? Some communications can come across as 
harsh and incongruous even though they contain valid informa-
tion and facts. Same goes for discordant communications which 
can be perceived as crude while still being completely reasonable 
in its content. Sayeed points out that we are fierce advocates of 
unhindered freedom of expression when it comes to literature 
and works of art, but at the same time, in the cases of ordinary or 
common speech, we are inclined to be ambivalent (Sayeed, 2017, 
p. 10).
This is where our research starts. By looking through the prism 
of legality, we can protect the speech that has purposeful and im-
portant ideas behind it. But as we approach the limits of subject 
matter, we stumble upon another problem: who decides what is 
an important idea contained in the speech that must be upheld? 
The easy way out would be to allow all speech no matter the con-
tained idea in it. But at what cost and with what consequences?
To outline the central idea behind the analysis in this research 
paper, we must first find out how the legal aspects behind speech 
and communications deal with this breaking point. To find this 
legal aspect we must focus on freedom of speech. But not only 
on freedom of speech as an instrument of lawmakers and part 
of the legal system but freedom of speech as a human right. This 
research paper is structured in two parts, with each being a re-
search study on its own and not related. Both parts are devoted 
to the research of case law and finding the relevant patterns in the 

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DIGNITAS ■ Constitutional Law
argumentation of the decisions made by judges.
The first part analyzes the historical views of freedom of 
speech and is centered around the caselaw of the United States of 
America. The second, final part revolves around modern caselaw 
from the courts in the Caribbean region, more specifically, from 
the Bahamas and Jamaica. The posed research question tackles 
the predicament of the background behind freedom of speech as 
a human right; if it is contingent on the perception or the context.
2. Freedom of speech as a human right
The question of how highly we value freedom of speech as a 
human right is not as perplexing as it might seem. International 
law and constitutions of countries all around the world prove 
that freedom of speech is a fundamental human right that offers 
protection of the liberties that an individual has. It is an aspect of 
individual liberty and thus a good unto itself (Stevens, 1993, p. 
1312). The aim of this research paper is to enlighten the position 
of the freedom of speech as a crucial human right for society to 
function. When we delve deeper into the context of this human 
right, we can quickly discover that it encompasses all the corners 
of our waking life. To provide proof of this statement, we can 
name one clear example: the perpetuation of knowledge and 
furthering science. If there was a ban on speech or a censorship 
of sorts that would prohibit sharing knowledge, there would 
be no advancements in any field or profession. The interest in 
expressing our thoughts, beliefs and commitments is not solely 
based on the results that may follow from their articulation as 
persuading others of our view but also on the very role such 
expression plays in developing and discovering the content of 
those thoughts and beliefs (Gilmore, 2011, p. 518). Let us con-
nect this thought with something very important for individuals: 
the ability to voice concerns, criticism and opinions of issues 
that cause controversy and doubt. It is a common denominative 
that doubt was the precursor for some of the most advanced in-
novations and scientific breakthroughs in human history. Those 
who doubted the dominant narrative sought answers that would 
prove their doubts were justified. This is why the right to free 
speech is seen as essential for the discovery of truth (Dawood, 
2013, p. 293).

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
Even though freedom of speech as a human right can bring 
positive societal change, it can also bring unrest when it clashes 
with other human rights. This is even more clear in the digital 
age where lowering costs of transmitting, distributing, creating 
and modifying information has important democratising and 
decentalising effects which have all contributed to the change 
in social conditions of freedom of speech (Balkin, 2004, p. 3). It 
is true that freedom of speech is recognized as a human right by 
several legal documents, but so are other human rights that may 
come into conflict with it. As was presented beforehand, this 
research paper tackles the position that freedom of speech has 
as a human right. This not only means that it is safeguarding the 
individual's right to speak their mind but also to express oneself 
and be able to gather new knowledge, new ideas and different 
points of view from others who also utilize this same human 
right. This context that we have just provided offers an insight 
into what this human right really encompasses. It offers one the 
chance to articulate diverse political, cultural and philosophical 
views and at the same time be confounded by the same philo-
sophical, cultural and political views that serve the individual as 
a slightly different reflection of the views they have themselves. 
This should not be a reason of concern in any democratic so-
ciety. Even more so, when the legal system encourages such 
liberties.
We can go back in history to see, that even ancient Athenians 
boasted how they were unique people as they had freedom of 
speech (Radin, 1927, p. 215). Furthermore, even children of all 
ages show high levels of endorsement of freedom of speech, 
as this greatly refers to societal progress and democratic prin-
ciples (Helwig, 1998, p. 528). All ideas that might be socially 
acceptable should be free from any inhibition; same goes for 
controversial and unpopular ideas, due to the fact that once 
such ideas are suppressed, they will simmer underground and 
cause instability (Schlag, 1983, p. 729). For example, political 
arguments are on the constitutionally protected side of the line 
(Laycock, 1996, p. 813) and freedom of speech is of great value 
in the political process (Redish, 1982, p. 592) due to the fact 
that free speech rights serve an overarching interest in political 
equality (Sullivan, 2010, p. 144). The remedy for bad speech is 
said to be more speech and not enforced silence, which also 

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DIGNITAS ■ Constitutional Law
means that governments are not required to, or more impor-
tantly, not permitted to make decisions about what idea may be 
expressed and what idea may not be expressed (Sedler, 2006, p. 
384). Those in society who assert their autonomy through par-
ticipation, free thought and self-expression are also opposed 
to the thought of any governmental or community constraint 
(Powell, 1996, p. 16).
Constitutions and their accompanying national legal systems 
set out the legal framework for the practise of freedom of speech 
which means that free speech is directly correlated to the law. 
This, in term, means that each country decides by law how much 
autonomy an individual has when it comes to expressing them-
selves. When governments set up governmental structures, be it 
a court or an administrative agency, an individual who chooses 
to become enmeshed must accept the restrictions on autonomy 
(Baker, 2011, p. 280). Other than that, the regime of autonomy 
has an agreeable by-product which is the enrichment of public 
debate (Fiss, 1986, p. 1423). In reality, the autonomous behaviour 
of an individual is technically bordered by the courts of each 
country and the judges who determine how the law is applied. 
Rest assured, this is not solely done how the judges see fit but is 
built upon many precedent cases that created a foundation upon 
which every case is adjourned. That is why we should look into 
the jurisprudence of courts, but not so much for specific doctrinal 
rules because overarching doctrinal themes are equally as impor-
tant due to the fact that courts sometimes direct attention to such 
relevant themes (Coenen, 2017, p. 1605). We can now see that 
apart from law we need to also know how this law is applied in 
concrete situations.
The United States Supreme Court was adamant about the fact 
that freedom of speech was a value so integral to the democratic 
way of life as to withstand any form of legal balancing. When the 
law is applied in such a manner the scholarly discourse monitors 
a number of reccurring observations such as the need for unre-
strained speech as a necessary condition of self-development and 
self-fulfillment, the need for a robust democratic discourse which 
is essential for achieving political truth and last but not least, that 
allowing substantive limits on speech even in extreme circum-
stances would open the door to further restrictions (Mailland, 
2001, p. 1183).

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
3. Democracy and freedom of speech
Through the years, we have become accustomed to the be-
lief that freedom of speech, like many other human rights, is es-
sential for a democratic state. Freedom of speech is one of the 
cornerstones of democracy (Vance, 1918, p. 239). Not only be-
cause it gives a theoretical layout for the ability to ensure politi-
cal participation but also to cater to the needs and requirements 
of informed public debate. If one is not informed, they may not 
provide constructive feedback in a debate. The same goes for 
misinformation and censorship of targeted minority views. The 
quote about censorship being paternalistic and counterspeech 
being empowering finds itself based on the idea that laws that 
punish hate speech also undermine the equality rights of minor-
ity group members by treating them paternalistically as helpless 
victims who need the intervention of higher authorities on their 
behalf (Strossen, 2016, p. 218).
3.1 The obstacles
Free speech is beneficial for each individual as their ideas and 
opinions can be debated openly and without any limitation, of-
fering concise feedback to the individual regarding their ideas, 
which are tested in such a way. People have the right to accept or 
reject points of view and only informed people are ultimately best 
equipped to make decisions concerning their interests (Haskins, 
1996, p. 88). In addition to that, people will not be able to devel-
op intellectually and spiritually, unless they are free to formulate 
their beliefs and political attitudes through public discussion and 
in response to criticisms that others may express (Yong, 2011, p. 
7). We want to protect speech not because it causes no harm, but 
despite the harm it may cause (Schauer, 1983, p. 1295).
This brings us to the next problem that we can observe through 
the lens of human rights when we discuss freedom of speech: the 
discovery of truth. It is difficult to logically argue about the exist-
ence of multiple truths as it is commonly accepted that the truth 
based on available facts is only one. We might add that there 
can always be more than one perception of truth but that does 
not impact truth as an observed fact. If a voice is given to a wide 
variety of views over the long run, true views are more likely to 
emerge than if the government suppresses what it deems false 

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DIGNITAS ■ Constitutional Law
(Greenawalt, 1989, p. 131). Factual truth can be, in all senses of 
logic, only one, and the view that truth means nothing more than 
consensus is a very inadequate view, which is why it cannot serve 
as the basis for a coherent theory of free speech (Solum, 1989, p. 
72).
This is one of numerous challenges that eat away at the shield 
that the status of a human right offers to free speech. But is this 
an imminent threat to the status of a human right? Later on in 
this research paper, we will see how the court tackles such an 
obstacle. To further explain this, not only hate speech, but also 
government-bound restrictions and misinformation all contrib-
ute to this erosion. If banning hate speech is morally misguided, 
counter-speech is the only morally permissible remedy (Howard, 
2019, p. 105). Any restriction of access to information or cen-
sorship of it can give rise to authoritarian tendencies of a gov-
ernment which should be a red flag on its own. The same goes 
for suppressing dissenting opinions. The dilemma arises when it 
comes to misinformation. Through the years, this phenomenon 
has been colloquially dubbed fake news and it frequently spikes 
feverous public debates and outrage, which provides a reason 
for concern. The tedious fact of it all is that it can often lead to 
tainted social interactions and cohesion as well as provide serious 
questions in regard to public safety. However, this does not mean 
that the purpose of the speaker affects the value of the speech to 
listeners or public debate (Volokh, 2016, p. 1370). For now, the 
enigma remains unsolved: how far can unrestricted speech go 
and how much harm does restricted freedom of speech cause? 
We will look into this later on.
3.2 The solutions
The aforementioned question has, as implied, two reasonable 
sides to discuss. The first one is to gauge the unrestricted free 
speech and the consequences that such a lack of control brings. 
Second is the culpability that follows restrictions bestowed upon 
freedom of speech. The latter carries with it the implications for 
society which coincide with the risk of influencing political dis-
course and wreak havoc on the individuals when it comes to their 
freedom of expression. Should such a scenario unfold, there is 
no doubt that it would have a significant effect on society, espe-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
cially for the openness of society to diversity. This is actually a 
logical aftermath as freedom of speech more or less enables the 
coexistence of diversity in society. Speech constructs social reality 
(Volokh, 1996, p. 2433) and if one particular group in society is 
denied the human right of free speech, this means it will not have 
a voice and will not be heard which eliminates a certain aspect 
of cultural diversity amongst the members of society. It is easy to 
speculate whether such a condition would lead to increased in-
tolerance of society to such a group, especially when this group 
would try to make their voices heard. And this is one of many 
reasons why freedom of speech is needed. All the individuals in 
society should at least feel free to express themselves and state 
their opinions without the threat of backlash. This backlash need 
not be associated only with coming from other members of soci-
ety but also from the state, in particular government agencies for 
example. Expression deserves extensive governmental immunity, 
which is strongly tied to the relationship between expression and 
individual autonomy (Wellington, 1979, p. 1106). The suppres-
sion of ideas is illegitimate because it is inconsistent with the 
presupposition that a democratic society bases its decisions on 
full and open discussion of all points of view and on top of that 
it is also illegitimate because of the possibility that the govern-
ment may wrongly decide that something poses an unacceptable 
danger to the expression of valuable ideas and that is why sup-
pression of ideas is not a legitimate government function (Bogen, 
1983, p. 464).
Should we follow this argument, we find ourselves head on 
with the threat of governmental influence on society through 
limitations of free speech. This is not something unknown, as 
there have been multiple historical cases where it was not in the 
best interest of the government if the individuals revealed certain 
information that held the government responsible for wrongdo-
ings. To put it in simpler terms, free speech is decisive in keep-
ing the government accountable for its actions. The detrimental 
limitation of free speech can lead to a loss of the option to hold 
a government accountable. For example, the constitutional crisis 
eventuating in the resignation of President Richard Nixon in the 
United States of America had a profound effect on the degree of 
valuation of a free communication market as first hand experi-
ence shows that attempts by officials to suppress information 

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DIGNITAS ■ Constitutional Law
only strengthens belief in freedom of speech and press among 
those who already subscribe to these beliefs and also converts 
some to a new belief in the value of freedom of speech (Wilson, 
1975, p. 75).
4. The limits of free speech
After describing all of this, it is a difficult endeavour to imagine 
when does limiting free speech causes more good than it does 
harm. If we try to solicit a clear reply to such an inquiry, we can 
start by asking ourselves if a human right can be abused. If the an-
swer is yes, then it is the responsibility of the law to prevent abus-
ing freedom of speech in order to protect other human rights. But 
if the answer is no, it becomes comprehensible that a human right 
cannot be abused since it can be bordered solely by the rights 
and dignity of others. If we follow the idea that we have construct-
ed here, it is self-explanatory that freedom of speech provides 
meaningful standards of communication which can only birth 
dialogue in a constructive and nonillicit manner circumscribed 
by candour. Let us give a plain example of this. The lack of mu-
tual understanding cannot be a reason to label something as hate 
speech but should be treated as a way to express differentiating 
opinions. Allegedly harmful speech is commonly labeled as hate 
speech (Strossen, 1996, p. 449). As friends agree to disagree, the 
freedom of speech provides those who participate in a dialogue 
a discerning way to be heard. As soon as something is labeled as 
hate speech and excluded from public debate, the elegance of 
the dialogue diminishes and gives place to the brute force of de-
jecting one from the dialogue based on a label. For example, the 
government cannot prohibit hate speech on the grounds that it 
expresses a bad idea and is inconsistent with democratic values 
(Sedler, 2006, p. 383). Of course, it can be said that there needs to 
be a recourse to act accordingly, for example against those who 
instigate or opress. But even in this case, a more well-developed 
test is needed to better distinguish between speech that implies 
a true threat and speech that, no matter how inflammatory it may 
be, is not a threat at all (Rothman, 2001, p. 367).
The same goes for decisions made by courts. If the courts are 
allowed to treat otherwise protected speech as being less valuable 
than other speech, the more calls there will be for creating new 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
zones of diminished protection (Volokh, 2004, p. 924). The main 
point here is not to allow individualistic arbitrariness to enter 
into the realm of limiting freedom of speech. It is always better to 
harbour a chance of dialogue than to prevent this dialogue from 
happening.
The aforementioned perception of hate speech can allow for 
a non-uniform approach to it. The first approach is to allow hate 
speech in order to maximize opportunities for individual ex-
pression and cultural regeneration while the second approach is 
highly controversial due to the fact that it represses hate speech 
through sanctions ranging from official and private reprimands 
to criminal prosecution (Massaro, 1991, p. 213). A third approach 
combines the first two. It is also important to note, that people 
can understand the gravity of hate speech while still supporting 
freedom of speech because those who defend free speech may 
recognize the harm of hate speech, but firmly believe that free-
dom of speech is more essential than censoring speech content 
(Downs, Cowan, 2012, p. 20). This is why speech is sufficiently 
distinctive enough to form a basis for a special right of freedom 
of speech which in turn means that skeptics are incorrect to say 
that speech cannot be the basis of a special right just because 
it cannot be distinguished from other phenomena in the world 
(Kendrick, 2018, p. 703).
5. The values behind a human right
The complexity of this human right far exceeds the speculative 
objections of the need to diminish its reach. This is confirmed 
by many constitutions of the countries around the world and by 
the case law of their courts. The duty of the courts is to weigh 
the circumstances and appraise the substantiality of the reasons 
advanced in support of the regulation of the free enjoyment of 
the right to speech (Bogen, 1979, p. 387). Perpetuating an en-
vironment in which individuals feel free to speak their minds 
and protecting their right to express themselves opens the gates 
of democracy and keeps authoritarianism out at the same time. 
Upholding the values of freedom strengthens democracy as well 
since free speech should always be seen through the lens of de-
mocracy (Sunstein, 1992, p. 316). Speech that matters is less free 
if a person must pick their words with exquisite care, not to men-

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tion the fact that if communications had to meet strict standards of 
correct formulation, people would be far more hesitant to speak 
their minds and what they did say would be less an expression of 
their personality (Greenawalt, 1989, p. 155).
There have been many works where there was an attempt 
to explain freedom of speech through the legal documents that 
frame it. There is no shame in such a venture, but to try and elicit 
the meaning of the human right part in the freedom of speech 
it is best to turn to the application of law and not only the docu-
ments that frame it. We could go on about the legislation which 
defines freedom of speech as a human right, but it would be far 
more pragmatic to look at it from the perspective of the judge 
who uses such law in an actual court case. This is the reason why 
the methodology behind this research paper focuses on analyz-
ing the court verdicts that give us a glimpse of how the freedom 
of speech fragments itself into a human right as we know it today. 
By doing so we will aspire to crystalize freedom of speech as a 
human right with a particular background that characterizes it as 
a fundamental human right in a democratic society.
Getting to know the deliberation of the court before coming 
to a definitive conclusion, we set out to firstly analyze the legal 
argumentation on top of which the judge reached a decision. By 
knowing how the argument is structured we get an insight into 
how the freedom of speech is properly exercized in accordance 
with the human right principles. Each human right has a back-
ground context into which it is set. Freedom of speech is no dif-
ferent. This is the main research question of this paper.
6.  Historical analysis from the perspective  
of the United States
Let's start with the cradle of freedoms, the United States of 
America. The Supreme Court of the United States has a rich his-
tory when it comes to defining the freedom of speech as a hu-
man right and we will begin right at the start, in 1919. On March 
3rd of that year the Supreme Court of the United States reached 
a verdict in Schenk v. United States in a case of a conspiracy to 
circulate among men who were called and accepted for military 
service a circular which intended to influence them to obstruct 
the draft. The Court decided that words that would be ordinarily 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
and in many places within the freedom of speech protected by 
the First Amendment, may become subject to prohibition when 
of such nature and used in such circumstances as to create a clear 
and present danger that they will bring about the substantive 
evils which Congress has a right to prevent and the character of 
every act should depend on the circumstances in which it is done 
(Schenk v. United States, 249 U.S. 47, 1919, p. 48.). In this legal ar-
gumentation, we can see that the Court emphasized the condition 
of clear and present danger. This means that it needs to be prov-
en beforehand that the act registers a danger that is both clear and 
present. Acts that are not set forth to become such danger cannot 
be subject to the limitations of free speech. Such materialized 
danger can then serve as a prerequisite that free speech can be 
limited. This limitation that we found and presented here brings 
us to another standard which was created by the Supreme Court 
of the United States in the case Abrams v. United States.
The Abrams v. United States case was decided on November 
10th, 1919, by the Court, explaining the standard set forth in the 
Schenk v. United States even further. It stated that only present 
danger of immediate evil or intent to bring it about warrants Con-
gress to set a limit to the expression of opinion where private 
rights are not concerned and that Congress cannot forbid all ef-
forts to change the mind of the country (Abrams v. United States, 
250 U.S. 616, 1919, p. 628.). Here we can see that the Court gave 
to the Congress the option to set a limit to free speech if this limit 
prevents present danger of immediate evil. We emphasize the 
wording of immediate evil as this shows how serious the danger 
needs to be to have free speech limited as a fundamental freedom 
and human right. To understand this, we need to look deeper into 
the case and what it was about. The facts of the case which were 
undisputed were of a conspiracy to violate the Espionage Act 
by uttering the circulars that were intended to provoke and en-
courage resistance to the United States in the war with Germany, 
especially by inciting and advocating through such circulars a 
resort to a general strike of workers in ammunition factories for 
the purpose of curtailing production of ammunition essential for 
the war (Abrams v. United States, 250 U.S. 616, 1919, p. 616.). One 
might ask what was in these circulars or pamphlets that was so 
dangerous as to cause immediate evil. It contained war propagan-
da aimed at destabilizing the efforts of the United States. A lot of 

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DIGNITAS ■ Constitutional Law
five thousand pamphlets were distributed in one day, on the 22nd 
of August 1918. Let's explain that further; the pamphlets which 
circulated in the New York City stated: »The Russian Revolution 
cries: Workers of the World! Awake! Rise! Put down your enemy 
and mine! Yes! Friends, there is only one enemy of the workers of 
the world and that is Capitalism. Workers, Russian emigrants, you 
who had the least belief in the honesty of our Government must 
throw away all confidence, must spit in the face the false, hypo-
critic, military propaganda which has fooled you so relentlessly, 
calling forth your sympathy, your help to the prosecution of the 
war.« (Abrams v. United States, 250 U.S. 616, 1919, p. 620.). One 
might see how this would provoke a hasty response from society, 
not the least from those who were not at ease with the Govern-
ment. This is more so true when we realize that the conclusion 
of the pamphlet included a direct call to action: »With the money 
which you have loaned, or are going to loan them, they will make 
bullets not only for the Germans, but also for the Workers Soviets 
of Russia. Workers in the ammunition factories, you are produc-
ing bullets, bayonets, cannon, to murder not only the Germans, 
but also your dearest, best, who are in Russia, and are fighting for 
freedom.« (Abrams v. United States, 250 U.S. 616, 1919, p. 621.). 
The Court decided that the spirit becomes even more bitter as the 
pamphlet declares that America and her Allies have betrayed the 
workers and that the reply of all workers to the barbaric interven-
tion has to be a general strike.
Judge Oliver Wendell Holmes Jr. Dissented. His argument was 
that when words are used exactly, a deed is not done with the 
intent to produce a consequence unless that consequence is the 
aim of the deed (Abrams v. United States, 250 U.S. 616, 1919, p. 
627.). His creative take on free trade ideas is summed up in his ex-
planation of the best truth which is in the power of the thought to 
get itself accepted in the competition of the market and that truth 
is according to Judge Oliver Wendell Holmes Jr. the only ground 
upon which wishes can be safely carried out to which he adds that 
we have to wager our salvation upon some prophecy based upon 
imperfect knowledge and for that reason, we should, as Judge 
Oliver Wendell Holmes Jr. puts it, be eternally vigilant against 
attempts to check the expression of opinions that we loathe and 
believe to be fraught with death, unless so imminently threaten 
immediate interference with the lawful (Abrams v. United States, 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
250 U.S. 616, 1919, p. 630.). What makes his dissenting opinion so 
persuasive is not only the grace of his legal writing but also the ar-
ticulate thought that he expressed in regard to opinions that some 
consider grisly and frightful to their own. We may speculate that 
this is the reason why Judge Louis Dembitz Brandeis concurred 
with this opinion. Judge Louis Dembitz Brandeis also authored 
the concurrence in the Whitney v. California case which we are 
going to present next.
The Whitney v. California case was decided on May 16th 1927. 
This case revolved around the question of whether joining and 
assisting in the organization of a Communist Labor Party con-
travened the California Criminal Syndicalism Act. The opinion 
of the Court was delivered by Judge Edward Terry Sanford. The 
opinion of the Court was that freedom of speech does not confer 
an absolute right to speak, without responsibility whatever one 
may choose, neither does it give an unrestricted and unbridled 
license of immunity for every possible language, neither does it 
prevent the punishment of those who abuse this freedom, which 
coincides with the fact that State can in the exercise of its police 
power punish those who abuse this freedom by utterances in-
imical to the public welfare, which incite to crime, disturb the 
public peace or endanger the foundations of organized govern-
ment if it is threatened of being overthrown by unlawful means 
(Whitney v. California, 274 U.S. 357, 1927, p. 357.). Judge Louis 
Dembitz Brandeis stated in his concurrence that the »Court has 
not yet fixed the standard by which to determine when a danger 
shall be deemed clear, how remote the danger may be and yet 
be deemed present and what degree of evil shall be deemed suf-
ficiently substantial to justify resort to abridgment of free speech 
and assembly as the means of protection (Whitney v. California, 
274 U.S. 357, 1927, p. 374.).
Nonetheless, the background of this case remains clear; Miss 
Anita Whitney was convicted of the felony of assisting in organiz-
ing the Communist Labor Party of California, by being a member 
of it and assembling with it. The mentioned acts were enough to 
constitute a crime, which was based on a prerequisite that the 
Communist Labor Party of California was formed to teach crimi-
nal syndicalism. The statute that made these acts a crime restrict-
ed the right of free speech and of assembly theretofore existing 
(Whitney v. California, 274 U.S. 357, 1927, p. 374.). Should this be 

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DIGNITAS ■ Constitutional Law
a reasonable ground for concern? While the majority of justices 
on the Supreme Court of the United States upheld the verdict 
against Anita Whitney, this also had a fairly negative impact on 
the freedom of speech. Let us now explain this effect which was 
a residual aftermath of the verdict. Anita Whitney was arrested in 
November of 1919 after giving a speech in Oakland, which was 
part of a fundraiser for the Communist Labor Party of California. 
Although she denied that the speech she gave was meant to in-
cite violence, she was found guilty of criminal syndicalism and 
sentenced accordingly. When she turned to the Supreme Court of 
the United States she claimed that her speech was treated differ-
ently than the speech of others and that this discrepancy in equal-
ity stemmed from the fact that the subject matter was parlous to 
some. This might as well be the reason that Judge Louis Dembitz 
Brandeis possibly had in his mind when he wrote that the pro-
hibition which was newly introduced means that the statute no 
longer solely aims at the practise of criminal syndicalism but now 
also at associating with those who propose to preach it, although 
he still sees the right of free speech, the right to teach and the 
right of assembly as fundamental rights even though they are not 
absolute and subject to restrictions in order to protect the State 
(Whitney v. California, 274 U.S. 357, 1927, p. 373).
What constitutes a serious threat to the State and where does 
free speech wander into the territory from which it can cause 
irreparable damage to the State? Judge Louis Dembitz Brandeis 
gave us an insight into how to answer this question when he 
wrote that fear of serious injury cannot alone justify suppression 
of free speech and assembly by using the historical anecdote of 
men who feared witches and burnt women, to which he added 
the description of the function of free speech to free men from 
the bondage of irrational fears. In addition to this, he pointed out 
how there must be reasonable ground to fear that serious evil 
will result if free speech is practiced in order for it to be justifi-
ably suppressed. In his opinion, there must also be reasonable 
ground to believe that the evil which needs to be prevented is 
a serious one. It can be logically believed that this point of view 
garnered his opinion of the fact that even advocacy of violation, 
however morally reprehensible, is not automatically a justification 
for denying free speech where the advocacy falls short of incite-
ment and there is nothing to indicate that the advocacy would be 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
immediately acted on, to which he added the dilemma of wide 
differences between advocacy and incitement, analog to prepa-
ration and attempt, similarly to the difference of assembling and 
conspiracy (Whitney v. California, 274 U.S. 357, 1927, p. 373.).
How to act upon clear and present danger depends on the 
notion of finding it in the first place. Surely one can quote the 
famous Judge Potter Stewart and say that they will know it when 
they see it but this approach seems to fall short of the gravitas that 
comes with immediate serious violence that is expected upon 
being advocated for. Should there be any prior reason extend-
ing out to past behaviour which would lead us to believe things 
would stir up, we might think things through or maybe not. Ac-
cording to the position that Judge Louis Dembitz Brandeis took 
in this case only an emergency can justify repression. He grandi-
osely wrote that those who won the independence by revolution 
were not cowards and did not fear political change, which meant 
that no danger from flowing speech could be deemed clear and 
present unless the incidence of evil apprehended was so immi-
nent that, according to his opinion, may befall before there is an 
opportunity for full discussion, leading to the fact that evil can be 
averted by the process of education (Whitney v. California, 274 
U.S. 357, 1927, p. 377.) and this means more speech, which is a 
remedy needed to be applied in accordance to the fact that en-
forced silence cannot do as much as education and speech.
From this analysis which we made, the reader can further un-
derstand why imminent danger does not automatically justify a 
legislator's ban or prohibition just to cater to the functions of an 
effective democracy. Unless, of course, the apprehended evil caus-
es serious problems. We saw that Judge Louis Dembitz Brandeis 
feels how stringent the measure of prohibiting free speech is. He 
even structured his argument on the Founding Fathers and their 
courage to act freely. This position can be attributed to the fact 
that he held a view on how it is not enough to justify suppression 
of free speech if it is likely to result in some violence or in the de-
struction of property, but there needs to be a probability of seri-
ous injury to the State instead (Whitney v. California, 274 U.S. 357, 
1927, p. 378.). His remarks were observed in the next case that we 
are going to analyze and that is the Terminiello v. Chicago case.
The aforementioned case of Terminiello v. Chicago was de-
cided on the 16th of May 1949. To give a time perspective to the 

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DIGNITAS ■ Constitutional Law
reader, more than two decades later the doctrine of clear and 
present danger was again further elaborated. The undisputed 
facts of the case and its background are as follows: »In a meet-
ing which attracted considerable public attention, petitioner ad-
dressed a large audience in an auditorium outside of which was 
an angry and turbulent crowd protesting against the meeting. 
The petitioner condemned the conduct of the crowd outside 
but also at the same time started to vigourously criticize various 
political and racial groups. Notwithstanding efforts of a cordon 
of police to maintain the order, there were several disturbances 
in the crowd. Petitioner was charged with violation of an or-
dinance forbidding any breach of peace and the trial court in-
structed the jury that any misbehaviour which stirs the public to 
anger, invites dispute, brings a condition of unrest or creates a 
disturbance, violates the ordinance (Terminiello v. Chicago, 337 
U.S. 1, 1949, p. 1).
Reverend Father Arthur Terminiello delivered a crude and 
harsh speech that fired up the crowd of protestors who were held 
at bay by the police. There was an estimate of 800 people at the 
event. The number of people at the spot later on was 1500 (Ter-
miniello v. Chicago, 337 U.S. 1, 1949, p. 16). It was clear to all that 
the speech would invite dispute and stir the emotions of all who 
were involved. People were not at ease and many became an-
gry. But does unrest and dissatisfaction with what someone says 
cause the suppression of free speech? Do such circumstances al-
low for the prohibition of freedom of speech? We will present to 
the reader whether this situation constituted a clear and present 
danger or was it just a seldom invective occasion which brought 
slight public annoyance and inconvenience for the individuals 
involved.
With no intention of spoiling the final outcome to the reader 
we must explain that Father Arthur Terminiello was convicted, 
the Illinois Appellate Court and the Supreme Court of Illinois af-
firmed but the Supreme Court of the United States granted certio-
rari and reversed. Continuing on we will explain why through the 
analysis of the argumentation that was delivered by Judge William 
Orville Douglas, a successor of Judge Louis Dembitz Brandeis.
The Court decided that the vitality of civil and political institu-
tions in society depends on free discussion and accordingly the 
function of free speech is to invite dispute as it may only serve 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
its high purpose when it induces a condition of unrest, creates 
dissatisfaction with present conditions and also stirs people to 
anger, because speech is often provocative and challenging, so it 
may strike at prejudices and preconceptions with profound un-
settling effects as it presses for an acceptance of an idea (Termin-
iello v. Chicago, 337 U.S. 1, 1949, p. 4.). This is why the trial court 
failed as it permitted the conviction of Father Arthur Terminiello 
on the grounds of his speech inviting public dispute, making peo-
ple angry and at unrest. That is why free speech is protected as 
a human right in the first place. It should not be decreased just 
so we can achieve the absence of anger and public dispute. If 
we lessen the reach of free speech due to the fact it may unsettle 
people we at the same time deny the ability to discuss any issue 
freely without the angst of making someone angry with your per-
sonal views. We need not bind free speech with subjective emo-
tions which can be stirred by opposing views. Such an approach 
is flawed. Let's explain in detail the reasons for this by analyzing 
the case at hand. The Court had tremendous candor when de-
livering this decision as is shown in the fact that it noticed how 
Illinois courts convicted Rev. Fr. Arthur Terminiello based on the 
fact of inviting dispute and bringing about a condition of unrest. 
The Court explained that those courts merely measured Rev. Fr. 
Arthur W. Terminiello´s conduct and not the ordinance against 
the Constitution, which is worrisome as the petitioner raised both 
points, that his speech was protected by the Constitution and that 
the inclusion of his speech within the ordinance was a violation 
of the Constitution (Terminiello v. Chicago, 337 U.S. 1, 1949, p. 6.). 
This should not be a nuisance to any court as they are the ones 
applying the law so they should be able to check the aforemen-
tioned points.
A similar case to the one we presented before was the Cantwell 
et al v. Connecticut which was decided on May 20th 1940. In that 
case, the Court stated that when a clear and present danger of riot, 
disorder, interference with traffic upon the public street or other 
immediate threat to public safety, peace, or order appears, the 
power of the State to prevent or punish is obvious, as is equally 
obvious that the State may not unduly suppress free communica-
tion of views, religious or others, under the guise of conserving 
desirable conditions (Cantwell v. Connecticut, 310 U.S. 296, 1940, 
p. 308.).

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The question bestowed upon us is how to draw the line be-
tween a speech that is meant to provoke certain feelings and 
force the individuals to peruse thought-provoking facts and on 
the other hand speech that is only meant to incite violence and 
cause unrest amongst the public.
We can find the answer in the Feiner v. New York case. The 
facts of the case are rather concerning but also extremely straight-
forward. The Supreme Court of the United States stated the fol-
lowing facts of the case: »Petitioner made an inflammatory speech 
to a mixed crowd of 75 or 80 Negroes and white people on a 
city street. He made derogatory remarks about President Truman, 
the American Legion, and local political officials; endeavoured to 
arouse the Negroes against the whites and urged that Negroes rise 
up in arms and fight for equal rights. The crowd, which blocked 
the sidewalk and overflowed into the street, became restless, its 
feelings for and against the speaker were rising and there was at 
least one threat of violence. After observing the situation for some 
time without interference, police officers, in order to prevent a 
fight, thrice requested the petitioner to get off the box and stop 
speaking. After his third refusal, and after he had been speaking 
for over 30 minutes, they arrested him and he was convicted of 
violating section 722 of the Penal Code of New York, which in 
effect, forbids incitement of a breach of peace« (Feiner v. New 
York, 340 U.S. 315, 1951, p. 315.).
The Court reached a decision on the 15th of January 1951. The 
opinion was delivered by Judge Frederick Moore Vinson. Peti-
tioner was convicted of the offense of disorderly conduct and the 
conviction was affirmed by the Onondaga County Court and the 
New York Court of Appeals. The Court held the conviction, while 
petitioner Irving Feiner claimed that the conviction was in viola-
tion of his right of free speech. Let's explain the reason behind 
it. The court noticed that the exercise of the discretionary power 
that police officers had was used to prevent the breach of the 
peace and that the same notion was approved by the trial court 
and two courts on review. Those same courts also recognized 
the right of the petitioner to hold a street meeting, to make use 
of loud speakers and to make derogatory remarks concerning 
public officials. This was not contested as it was within the realm 
of legality. When making the arrest, the police officers were solely 
motivated by a concern for the preservation of order and protec-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
tion of the general welfare and not by the suppression of political 
views that Irving Feiner had (Feiner v. New York , 340 U.S. 315, 
1951, p. 319).
In reaching the decision, the Court stated that it was mindful 
of the possible danger of giving overzealous police officials com-
plete discretion to break up otherwise lawful public meetings and 
that it is aware that the ordinary objections of a hostile audience 
cannot be allowed to silence a speaker (Feiner v. New York, 340 
U.S. 315, 1951, p. 320). It, therefore, decided that police officials 
are not powerless to prevent a breach of peace when the speaker 
passes the bounds of argumentative persuasion and starts to in-
cite a riot. In the case we presented, this was exactly what hap-
pened and, as such, could not be protected as free speech.
Judge Hugo Lafayette Black dissented and wrote that such a 
conviction is a mockery of the free speech guarantees as it sub-
jects all similar speeches to the supervision and censorship of 
the local police and views it as a long step toward totalitarian 
authority (Feiner v. New York, 340 U.S. 315, 1951, p. 323). Due to 
this legal argument that he presented he made clear in his dissent 
that he does not want to take part in such a thing. His staunch ap-
proach to free speech would definitely go more in line with what 
we have presented so far. He concluded with a remark that he un-
derstands that people in authoritarian countries must obey arbi-
trary orders but hoped that there was no such duty in the United 
States because due to this minority speakers in every city can be 
silenced (Feiner v. New York, 340 U.S. 315, 1951, p. 328). We can 
see the reasoning in the background of all of this. The erosion of 
free speech as a human right can happen slowly but when these 
incremental steps surmount to a large enough chunk the entire 
intent of the human right erodes. The gradual slide that can hap-
pen to human rights of this type need not happen through years 
it can happen in decades before it becomes perspicuous that 
the right is almost gone. We have shown to the reader how free 
speech functions in the light of the intent that this human right 
has. Free speech is one of those human rights that can potentially 
be in danger by the perilous erosion that takes place through 
many years before one even becomes moderately aware of it.
The analyzed case can raise some worries especially due to 
the fact that judge William Orville Douglas wrote in his dissent-
ing opinion, with whom judge Sherman Minton concurred, that 

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DIGNITAS ■ Constitutional Law
there were no fights and no disorder even by the standards of the 
police, no one was even heckling the speaker, there was only the 
testimony of the police that there was some pushing and shoving 
in the crowd (Feiner v. New York, 340 U.S. 315, 1951, p. 330). Sure 
enough, the topic was ill-mannered and in bad taste, especially 
due to the fact that unpopular opinions often gather heckling 
from the crowd if not just cause unrest to the individuals present 
there. But the police should, according to judge William Orville 
Douglas, protect these lawful gatherings so that speakers may ex-
ercise their constitutional rights as long as there is no incitement 
of riots.
In the same year, there was another similar case in front of the 
Supreme Court of the United States. The Dennis et al vs. United 
States case was about petitioners who were leaders of the Com-
munist Party in the United States. They were indicted in a federal 
district court for willfuly and knowingly conspiring to organize 
as the Communist Party a group of people to teach and advocate 
the overthrow and destruction of the government by force and 
violence. They were convicted.
The Court, through the delivered opinion by Judge Fred Moore 
Vinson, stated that it has adopted as a rule the statement made by 
Judge Billings Learned Hand who phrased that courts must in 
each case ask whether the gravity of the evil, discounted by its im-
probability, justifies such invasion of free speech as is necessary 
to avoid the danger (Feiner v. New York, 341 U.S. 494, 1951, p. 
510). Here, we can see why the petitioners were denied the right 
to exercise free speech, as such exercise would mean the creation 
of a plot to overthrow the government. The gravity of evil in this 
case is an overthrown government and the suppression of free 
speech would prevent this from happening. This is the reason 
why the right to exercise free speech was denied. Later on, as 
time passed, both Schenk v. United States and Abrams v. United 
States were overturned and also Dennis et al v. United States was 
overturned as well, while Whitney v. California was overruled as 
later decisions set up a newer standard to guarantee free speech. 
By the end of the sixties the clear and present danger doctrine 
was replaced by the imminent lawless action test brought by the 
Brandenburg v. Ohio case (Brandenburg v. Ohio, 395 U.S. 444, 
1969, p. 447). To this day the caselaw in the United States seems to 
use the imminence of a targeted threat as one of the most impor-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
tant thresholds to decide whether a restriction must be imposed 
on a given statement or act, although more recently the Court has 
moved away from this doctrine, if you threaten violence against a 
specific target, you might find your right to speech restricted, but 
in the same light, religious practices and speech that has hateful 
content may not be regulated, however, if the victim can prove 
targeted intent to intimidate, the Court will not intervene in a re-
striction (Lamson, de Souza Lehfeld, Martinez Perez Filho, 2022, 
p. 50).
7.  Synthesis of the results for the historical 
analysis
We chose the historical caselaw of the United States for a rea-
son; the United States of America has always been a cornerstone 
for liberties and human rights. It was clear that in order to find ap-
plicable elucidation it was unavoidable to include such a strong-
hold. Especially from the historical view point of how it all began. 
The main point was to show the changing dynamics of the free-
dom of speech as a human right. We feel that a time period of 50 
years from 1919 up to 1969 was enough to showcase the relevant 
approaches and how they change with time. The background of 
each human right can be traced in the same manner that we pre-
sented so it would not be pivotal for this research to extend it to 
a broader timeframe. Free speech and the interpretation of what 
constitutes it can sometimes heavily depend on the circumstances 
that are taken into account by the court before issuing a verdict. 
It was shown that no case is really identical to other cases, yet we 
can undoubtedly find similarities in precedent that help. It was 
demonstrated that a human right such as free speech can be as 
fragile as it can be strong. The constant development around it 
means that it can go from overwhelmingly perceptible to almost 
non-existent. It was also apparent that free speech as a right on its 
own is always subject to judicial evaluation.
Most importantly, it was evident that even from a historical 
point of view, there was a sense of context put into this eval-
uation, rather than just the sheer perception of judges when it 
comes to each case. The context of free speech was always put 
into consideration, rather than just considering the perception of 
such speech. Be it in regards to communism or religion, or even 

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DIGNITAS ■ Constitutional Law
espionage and racial topics, the speech was assessed from the 
context in which the ideas were shared or promoted. The judges 
were conscientious of the implications that a judgment based on 
perceived implication would have; that is why they put the whole 
situation in perspective. They looked at the bigger picture.
Why was this important? The importance of evaluating the 
context in matters of limiting free speech gives an additional safe-
guard to help uphold this human right. To put it plainly, would 
the situation be different if Rev. Fr. Arthur W. Terminiello gave 
the heated speech in a church rather than at the meeting in an 
auditorium or if Irving Feiner tried to commove a non-hostile and 
non-mixed crowd? The answer is simple, the context in which the 
speech is given and the context in which the idea is conveyed 
matters. The same goes for Anita Whitney and her speech she 
gave at the fundraiser for the Communist Labor Party of Califor-
nia in Oakland. The context in which the judges would ponder 
the case is without a doubt different if it was not given at a fund-
raiser for a communist party. This shows the importance of con-
text behind free speech.
8.  Modern developments from a Caribbean 
legal perspective
To further elaborate the research question of this research pa-
per regarding the background context into which freedom of 
speech as a human right is set, we need to provide additional 
balance to this research, since it is needed to provide us with the 
insight into how courts structure the arguments around the com-
mon human rights and principles surrounding them. In our case, 
we are researching the context of free speech.
Additional balance to this research comes in the form of ju-
dicial decisions from two of the highest courts in the Caribbean 
region. We chose the Supreme Court of the Bahamas and the 
Supreme Court of Jamaica. The standards of legal argumentation 
in the verdicts of the mentioned courts are on the same level of 
quality as any other court in the world and often exceed it. Often-
times this fact is wrongfully overlooked as it can provide valuable 
insight into the perception of free speech as a human right.
Let's start in the Bahamas. The first case we are going to ana-
lyze is between Coalition to protect Clifton Bay as the first appli-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
cant and the second applicant Zachary Hampton Bacon III versus 
the Hon. Frederick A. Mitchell as the first respondent and Minister 
of Foreign Affairs and immigration and second respondent the 
Hon. Jerome Fitzgerald as the Minister of Education, Science and 
Technology. Before we go into details, let's present the relevant 
context of the case. The first applicant is a non-profit environmen-
tal group popularly called Save the Bays and the second applicant 
is affiliated with them. They brought a constitutional motion chal-
lenging the disclosure of private and confidential emails said to 
belong to them. They sued the first and second respondent but 
also sued the third respondent which was the Attorney General 
in her capacity. The emails were disclosed in Parliamentary Pro-
ceedings by the second respondent and refered to the financial 
information of the Coalition to Protect Clifton Bay. The source 
of emails was never disclosed or fully explained. The Applicants 
claimed that the disclosure of the emails violated their Constitu-
tional rights, including Article 23 which is Freedom of Expression 
(Coalition to protect Clifton Bay, Zachary Hampton Bacon III v. 
The Hon. Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald 
MP, The Attorney General of the Commonwealth of the Bahamas, 
2016/PUB/con/00016, p. 3).
The Respondents on the other hand challenged the constitu-
tional motion on number of grounds. For our research paper the 
most relevant claim seems to be the fact that they stated that Court 
does not have jurisdiction to adjudicate on matters within the sa-
cred walls of Parliament or to make orders purporting to impinge 
on the conduct or speech of Members of Parliament. (Coalition 
to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon. 
Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald MP, The 
Attorney General of the Commonwealth of the Bahamas, 2016/
PUB/con/00016, p. 7). The Court decided that it will decide in 
the issue whether or not this is a case in which the Court will ad-
judicate on matters occurring within Parliament or make orders 
affecting the conduct of Members of Parliament or controlling the 
speech of Members of Parliament inside the Parliament and on 
top of that the Court decided to resolve the issue of the question 
should the Court make any order which places further restrictions 
on the constitutional rights and the freedom of speech (Coalition 
to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon. 
Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald MP, The 

140
DIGNITAS ■ Constitutional Law
Attorney General of the Commonwealth of the Bahamas, 2016/
PUB/con/00016, p. 19).
There was a restriction that the Court addressed immediately. 
We shall explain it in detail; there exists a statutory basis of par-
liamentary privilege which states that the freedom of speech and 
debates or proceedings in Parliament ought not to be impeached 
or questioned in any court or place outside of parliament. The 
privileges enjoyed included freedom of speech in parliament. 
The Court presented a limitation to this doctrine which included 
the Buchanan v. Jennings case which held that the need to protect 
freedom of speech in parliament and the right of parliament to 
govern its own proceedings did not preclude a claimant from re-
lying on such a record as evidence in support of an action against 
a Member of the Parliament based on what was said outside the 
House (Coalition to protect Clifton Bay, Zachary Hampton Ba-
con III v. The Hon. Frederick A. Mitchell MP, The Hon. Jerome 
Fitzgerald MP, The Attorney General of the Commonwealth of 
the Bahamas, 2016/PUB/con/00016, p. 32). Regarding this, the 
Court decided that it is well established that parliamentary privi-
lege even in its absolute form cannot apply to what a Member of 
Parliament says outside of Parliament.
The Court found that the Government, through one of its Cabi-
net Ministers, breached the Constitution and the Applicants were 
therefore entitled to vindicatory damages (Coalition to protect 
Clifton Bay, Zachary Hampton Bacon III v. The Hon. Frederick A. 
Mitchell MP, The Hon. Jerome Fitzgerald MP, The Attorney Gener-
al of the Commonwealth of the Bahamas, 2016/PUB/con/00016, 
p. 88). What persuaded the Court? The answer lies in the argu-
mentation that the Court used. It said that it is axiomatic that a 
man's private and confidential correspondence, precious to his 
heart, should not be the subject of public discussion and scrutiny. 
The second respondent made unsubstantiated allegations about 
the first applicant which he portrayed as a money-laundering or-
ganization. According to the Court these statements are regretta-
ble since it had nothing to do with the Mid-term Budget debates 
(Coalition to protect Clifton Bay, Zachary Hampton Bacon III v. 
The Hon. Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald 
MP, The Attorney General of the Commonwealth of the Bahamas, 
2016/PUB/con/00016, p. 90). This ruling showed us that there are 
limits to free speech even when it comes to parliamentary privi-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
lege. Freedom of speech as the constraint on the Government in 
this case constitutes an exception to parliamentary privilege. The 
verdict was presented by the honourable Madam Senior Justice 
Indra H. Charles on 2nd of August in 2016.
The second and final case we are going to analyze from the 
Supreme Court of the Bahamas is monumental in its own right. 
The case of Omar Archer, Senior as the plaintiff versus Commis-
sioner of Police and the Attorney-General of the Commonwealth 
of the Bahamas as the defendants brings us another interesting 
take on the freedom of speech. Before we dig into the fundamen-
tals of freedom of speech let's present to the reader some facts of 
the case first; over the course of several days in April of 2015 the 
plaintiff became embroiled in an acrimonious exchange on Fa-
cebook with a female, who is referred to as the virtual complain-
ant. She first called the plaintiff amongst other things, a »pathetic 
turd«, said that a »cockroach could beat you in an election«, and 
that his mother may have tried to induce abortion which made 
him »retarded instead«. The plaintiff responded back personal 
and offensive allegations, the most stinging of which were that 
she had »had a baby in a bucket in a Rasta camp and left it to die« 
and that she had HIV/AIDS and was spreading it. She complained 
to the police and the plaintiff was subsequently arrested, charged 
with intentional libel and summarily tried before a magistrate. 
Midstream that trial, he asserted that the law under which he was 
charged was unconstitutional and that is how the whole thing 
ended up in the Supreme Court (Omar Archer Sr. v. Commis-
sioner of Police, The Attorney General of the Commonwealth 
of the Bahamas, 2017/PUB/con/0024, p. 2). Justice Loren Klein 
made sure to point out the fact that this was the first time that 
the constitutionality of criminal libel is being questioned in this 
jurisdiction as this offence is considered anachronistic in many 
Western democracies and in a handful of Caribbean countries. 
To this he added, that any opportunity for reform through courts 
comes up firmly against the savings clause which paradoxically 
preserves laws that pre-date the Constitution even if repugnant 
to constitutional guarantees.
The plaintiff in his affidavit from 20.2.2018 states that he is a 
political activist and an advocate for freedom of expression and 
his lead counsel described him as a well-known publicly outspo-
ken figure with a big political profile. The plaintiff alleged in the 

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DIGNITAS ■ Constitutional Law
aforementioned affidavit that his prosecution was politically mo-
tivated. The woman with whom he had a virtual altercation is a 
newspaper reporter and according to the plaintiff a ghost writer 
for a tabloid; she and the plaintiff were Facebook friends until the 
unfortunate exchange when he unfriended her but are otherwise 
not socially acquainted. She inboxed the plaintiff on 16.4.2015 
(Omar Archer Sr. v. Commissioner of Police, The Attorney Gen-
eral of the Commonwealth of the Bahamas, 2017/PUB/con/0024, 
p. 5). She became aware of his public post which said she had 
Human Immunodeficiency Virus on the 16.4.2015 and made the 
screenshots on 19.4.2015 and made the complaint to police on 
that same day (Omar Archer Sr. v. Commissioner of Police, The 
Attorney General of the Commonwealth of the Bahamas, 2017/
PUB/con/0024, p. 7).
The main issue that arose later was the alleged violation of 
Article 23 of the Constitution which protects the rights to free-
dom of expression. Not only that but the plaintiff argued that 
criminal libel law was unconstitutional, and even if it is saved by 
the clause of existing law it is not reasonably required to protect 
private reputation for any public policy interests (Omar Archer 
Sr. v. Commissioner of Police, The Attorney General of the Com-
monwealth of the Bahamas, 2017/PUB/con/0024, p. 17). When 
deciding whether criminal libel is an interference with freedom 
of expression Justice Loren Klein pointed out that the right to 
freedom of expression is interfered with by the offence of in-
tentional libel but the law equally pursues a legitimate aim in 
protecting the rights, reputations and freedoms of others (Omar 
Archer Sr. v. Commissioner of Police, The Attorney General of 
the Commonwealth of the Bahamas, 2017/PUB/con/0024, p. 24). 
So this means that the question actually comes down to whether 
the interference is proportionate. Is it necessary and proportion-
ate to have the means to criminally punish people for publishing 
intentionally libelous material? Justice Loren Klein hinted that 
he would be prepared to hold that criminal libel was a prima 
facie interference with the right of free speech. He based this 
thought on the fact that there has been universal acceptance that 
freedom of speech is a sine qua non in a democratic society. In 
doing so he reminded of the Guyanese case Jagan v. Burham 
where it was said that the facets of freedom of expression were 
cherished rights and that the article of the Guyanese constitu-

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
tion protecting freedom of expression seeks to preserve what 
is vital in a free society wherein the right to speak, to propagate 
and to circulate ideas belong to everyone and will be protected 
for everyone. This means that the chief commodity of freedom 
of expression lies in its role in fostering free political discus-
sion (Omar Archer Sr. v. Commissioner of Police, The Attorney 
General of the Commonwealth of the Bahamas, 2017/PUB/
con/0024, p. 25).
In this aspect Justice Loren Klein built his argumentation on 
European jurisprudence where the courts developed the con-
cept that defamation laws, civil and especially criminal, can have 
a chilling effect on freedom of expression and the free flow of 
ideas. His perception was that civil remedy ought to be the first 
port of call to redress defamation, but this does not necessarily 
mean that the criminal law has no role in defamation as there 
are cases where a civil claim may not be feasible and may not 
punish, which is in the case where the defendant is a person of 
straw and unable to pay damages, or the defamer might be very 
wealthy and takes the calculated risk of paying damages. That is 
why they coexist (Omar Archer Sr. v. Commissioner of Police, The 
Attorney General of the Commonwealth of the Bahamas, 2017/
PUB/con/0024, p. 28).
On the question whether the legislative objective is sufficiently 
important to justify limiting freedom of speech the Court decided 
after performing the first element of the proportionality test, that 
the provision which penalizes defamation and limits the right 
to free speech with the objective of protecting reputation is a 
sufficiently laudable goal in a democratic society to warrant a 
limitation of freedom of expression. The Court ruled that this 
condition is not only satisfied because of the inherent value and 
dignity attached to personal reputation but also because the core 
substance of the right to freedom of expression is not necessarily 
impaired by such restrictions (Omar Archer Sr. v. Commissioner 
of Police, The Attorney General of the Commonwealth of the 
Bahamas, 2017/PUB/con/0024, p. 34). Counsel for the plaintiff 
argued that the comment in the context in which it was made 
was not really likely to have caused significant or serious harm 
which is why it was unnecessary and disproportionate for the 
state to intervene. The Court did not follow this. The words of 
the plaintiff were public, while she on the other hand messaged 

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DIGNITAS ■ Constitutional Law
him privately. His statement had the potential to cause significant 
harm as it was posted on Facebook where it can reach millions 
of people. The seriousness of his action is confirmed by the fact 
that the plaintiff committed several serious crimes against her, 
from concealing the body of a child and infanticide to knowingly 
spreading HIV. Challenged provisions were not unconstitutional 
on the grounds of proportionality (Omar Archer Sr. v. Commis-
sioner of Police, The Attorney General of the Commonwealth 
of the Bahamas, 2017/PUB/con/0024, p. 41). The Court did not 
find the act of prosecuting the plaintiff unconstitutional (Omar 
Archer Sr. v. Commissioner of Police, The Attorney General of the 
Commonwealth of the Bahamas, 2017/PUB/con/0024, p. 49). The 
verdict is dated to 29.6.2020.
The main point we can observe from the analyzed decisions 
from the Court is how the limitations of free speech are argued by 
the judges. There is an implied border where free speech cannot 
overflow and as we saw the two examples given, free speech as 
a human right is contested by other human rights. Parliamentary 
privilege for one does not provide full grounds for unlimited 
upkeep of the freedom of speech, same goes for the aspects of 
serious defamation. The second case showed that free speech can 
be potentially limited by another person´s reputation and protec-
tion of it. We saw how there is an intricate line of balancing the 
decision, which is usually tightly linked with the facts of the case.
Final case analysis comes from the decisions made by The Su-
preme Court of Jamaica. The cases were chosen according to the 
subject matter of free speech.
The first case is between Roy K. Anderson as the claimant and 
Dwight Clacken as the defendant. Before digging into the legal 
arguments behind the case we must provide the background of 
it: Dwight Clacken authored the book titled »No Justice in Jamai-
ca – How the Jamaican Judicial System Destroyed My Life and 
My Business and How It Can Happen to You«, Roy K. Anderson 
alleged that certain statements in the book were defamatory in 
reference to him as a judicial officer and his actions in the capac-
ity as a judicial officer. Roy K. Anderson is an Arbitrator and and 
Associate tutor in the Faculty of law, University of West Indies as 
well as a retired judge of the Supreme Court of Jamaica (Roy K. 
Anderson v. Dwight Clacken, 2016 HCV 05224, 2023 JMSC Civ 42, 
p. 3).

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
The statutory framework for this case was The Defamation 
Act of 2013 whose one of the principles is to ensure that the law 
relating to the tort of defamation does not place unreasonable 
limits on freedom of expression (Roy K. Anderson v. Dwight 
Clacken, 2016 HCV 05224, 2023 JMSC Civ 42, p. 17). The Court 
in this decision looked into case-law and cited The Jamaican Ob-
server Ltd v. Orville Mattis where the Court of Appeal stated the 
position that it takes years to build a good name and reputation 
but it takes only a few reckless lines in a newspaper to destroy 
or seriously damage that name or reputation; Section 22 of the 
Constitution gives a right to free speech but it does not permit 
defamation of one´s good character (Roy K. Anderson v. Dwight 
Clacken, 2016 HCV 05224, 2023 JMSC Civ 42, p. 38). The Court 
found that the claimant successfully proved malice on the part 
of the defendant for the reasons that the defamatory statements 
were published with an indirect motive, which is other than a 
duty to publish material of public interest regarding the admin-
istration of justice and that the evidence of intrinsic malice can 
be detected in the words and statements themselves as accord-
ing to the Court, the language used by the defendant was dis-
proportionate to the facts (Roy K. Anderson v. Dwight Clacken, 
2016 HCV 05224, 2023 JMSC Civ 42, p. 36). The Court also found 
that the defendant did not establish his defence of fair comment 
because the statements in the book were not honestly made and 
were not based on true representation of the facts but were ac-
tuated by malice (Roy K. Anderson v. Dwight Clacken, 2016 HCV 
05224, 2023 JMSC Civ 42, p. 37).
The problem of such viewing of free speech lies in the context 
of applying this human right. We saw that the Court structured a 
position in which it decided firstly that statements were published 
with an indirect motive. Malice intent was a presupposition to 
build an argument around it. Without this, it would be impossible 
to hold a limitation to free speech. To understand the words in a 
certain way, especially in intrinsic malice, it depends on how the 
Court views each case by the claims made by both parties. This 
means that, regrettably, even if the defendant did not have such 
an outcome in mind, but the affected claimant perceived it as 
such, it constitutes a limit of freedom of speech with the goal of 
protecting the good name and reputation. This approach can be 
problematic if left unmonitored.

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DIGNITAS ■ Constitutional Law
We can see the same issue in the next case that we are going to 
analyse. The case of Michael Troupe as the claimant versus Leon 
Clunis as the first defendant, Owen Wellington as the second 
defendant, Television Jamaica Ltd as the third defendant, CVM 
Television Ltd as the fourth defendant and Attorney General for 
Jamaica as the fifth defendant is an interesting one when it comes 
to assessing the protection of good name and reputation in the 
relation to freedom of expression and free speech in particular.
To understand the case more thoroughly we need to present 
the facts of it: On July 18th of 2012 at 5:30 in the morning a search 
and seizure operation was carried out by the Jamaica Constab-
ulary Force and its Anti-Lottery Scam Task Force of the Major 
Organised Crime and Anti-Corruption Agency and the Jamaica 
Defence Force under the command of Superintendant Leon Clu-
nis. It took place in the parish of Saint James at the residence of 
Michael Troupe, a businessman, Justice of Peace, Parish Council-
lor and Deputy Mayor for Montego Bay who resided at Pitfour, 
Granville in the parish. Troupe and his son were arrested. An 
illegal pistol was found at the residence. His son pleaded guilty 
to the offences of illegal possession of firearm and illegal posses-
sion of ammunition. The charges against Michael Troupe were 
dropped (Michael Troupe v. Leon Clunis, Owen Ellington, Tel-
evision Jamaica LTD, CVM Television LTD, Attorney General for 
Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 3).
The operation conducted at the residence was video recorded 
by Television Jamaica and CVM television and broadcast on the 
day the operation took place. Statements relating to the opera-
tion were made by Superintendant Clunis and Commissioner of 
Police Owen Ellington during the course of police operations 
which were broadcast by the same television stations during 
Midday news (Michael Troupe v. Leon Clunis, Owen Ellington, 
Television Jamaica LTD, CVM Television LTD, Attorney General 
for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 4). Michael 
Troupe claimed that he suffered severe embarrasment and sus-
tained damage by defamatory words of the defendants. The first 
two defendants stated that the publication of the statements was 
not defamatory as the published words were true and substantial-
ly true or in the alternative they were fair comments on matters of 
public interest and the circumstances of publication were protect-
ed by qualified privilege while the fourth defendant admitted that 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
its videographer was alerted to the raid, attended it and learned 
of the operation at Pitfour where the recording of the arrest was 
made (Michael Troupe v. Leon Clunis, Owen Ellington, Television 
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica, 
2012 HCV 06037, 2019 JMSC Civ 240,p. 6). The Court stated that 
if it decides that words are capable of defamatory meaning, it 
must determine whether an ordinary intelligent and unbiased 
person would understand them as words of disparagement and 
as an allegation of dishonest and dishonourable conduct (Michael 
Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD, 
CVM Television LTD, Attorney General for Jamaica, 2012 HCV 
06037, 2019 JMSC Civ 240, p. 18). The Court found the words giv-
en their plain and ordinary meaning, are imputing criminal action 
on the part of the claimant (Michael Troupe v. Leon Clunis, Owen 
Ellington, Television Jamaica LTD, CVM Television LTD, Attorney 
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 20). 
The words »key actors« and »top-tier actors within the scamming 
operations« connote involvement in criminality, when considered 
in the ordinary sense according to the Court, which means that 
the average Jamaican would infer guilt upon the claimant (Mi-
chael Troupe v. Leon Clunis, Owen Ellington, Television Jamaica 
LTD, CVM Television LTD, Attorney General for Jamaica, 2012 
HCV 06037, 2019 JMSC Civ 240, p. 22).
Comments made by the reporters would show, to a reason-
able person viewing the newscasts, that the claimant is involved 
in lottery scamming and was arrested because there was a strong 
case against him. That is why the Court found the words in their 
natural and ordinary meaning to be defamatory of the claimant 
as it had an effect of lowering the esteem that the claimant had 
in public due to the fact that the statements ascribe to the claim-
ant criminal conduct (Michael Troupe v. Leon Clunis, Owen El-
lington, Television Jamaica LTD, CVM Television LTD, Attorney 
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 25).
For the argument of fair comment that the defendants used, 
the Court stated that such words must be stated as a comment on 
some fact, which means that there must beforehand be a state-
ment with foundation of fact which is a basis for the comment 
given on this fact. If the facts on which the comments purport to 
be made are not proven to be true or published on an occasion 
of privilege, the defence of fair comment is not available (Michael 

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DIGNITAS ■ Constitutional Law
Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD, 
CVM Television LTD, Attorney General for Jamaica, 2012 HCV 
06037, 2019 JMSC Civ 240, p. 27). The Court made it clear that 
fair comment does not extend to misstatements of facts however 
bona fide they may be. In regard to the argument of qualified 
privilege, the Court stated that a proper balance must be struck 
between freedom of expression and the right of an individual to 
protect his reputation, which is relevant for freedom of speech 
(Michael Troupe v. Leon Clunis, Owen Ellington, Television Ja-
maica LTD, CVM Television LTD, Attorney General for Jamaica, 
2012 HCV 06037, 2019 JMSC Civ 240, p. 31). The reasonable tel-
evision viewer would understand the serious allegations when 
the reporter stated that the claimant was caught in the lotto scam 
dragnet. The Court concluded that the tone of publications was 
not investigative and thus fell below the threshold of responsible 
journalism as the reasonable man would be convinced from the 
reports that the claimant was involved in lottery scamming activi-
ties (Michael Troupe v. Leon Clunis, Owen Ellington, Television 
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica, 
2012 HCV 06037, 2019 JMSC Civ 240, p. 32).
It was the opinion of the Court that no public interest is served 
by publishing misinformation as the public was clearly misin-
formed as the claimant was not charged for any offences related 
to lottery scamming. The claimant was an elected representative 
which means that any allegation of criminal conduct on the part 
of such person is serious (Michael Troupe v. Leon Clunis, Owen 
Ellington, Television Jamaica LTD, CVM Television LTD, Attor-
ney General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 
34). The Court concluded that although the subject matter was of 
public interest, there was no need to hastily broadcast it without 
first verifying the accuracy (Michael Troupe v. Leon Clunis, Owen 
Ellington, Television Jamaica LTD, CVM Television LTD, Attorney 
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 36). 
On top of that, the excuse that the claimant was in custody is not 
sufficient but only shows, according to the Court, that there was 
no real effort made to get his side of the story. The Defendants 
failed to show any justification for the words spoken or broad-
cast (Michael Troupe v. Leon Clunis, Owen Ellington, Television 
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica, 
2012 HCV 06037, 2019 JMSC Civ 240, p. 54).

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
This case that we have analyzed showed how the relation be-
tween publishing information in public interest and the right of 
a person to protect their reputation and good name can have 
an impact on free speech. The argument of responsible journal-
ism when it comes to investigating matters in public interest still 
holds a high threshold for eliminating any misinformation before 
a certain broadcast reaches the audience. In this case the free 
speech aspect of journalism only comes to play when the infor-
mation does not base on something that is not true. It is debatable 
what can be proven to be true as investigative journalism often 
relies on information that is only the tip of the iceberg. In the case 
mentioned above this was not such an occasion as the broadcast 
was made of statements by officials who took part in the op-
eration. The reporters added their own connotation to the story 
which breached the human right aspect of free speech. We must 
distinguish between hard facts and embellished facts that can 
sometimes not even resemble the facts that they were based on.
The final case we are going to analyze from Jamaica also touch-
es the subject of free speech in the media. The case between Mau-
rice Arnold Tomlinson as the claimant and Television Jamaica Ltd 
as the first defendant, CVM Television Ltd as the second defend-
ant and The Public Broadcasting Corporation of Jamaica as the 
third defendant is an interesting legal issue. Let us start, as we do, 
with the facts of the case: the claimant Maurice Arnold Tomlinson, 
sought to have his message aired at a time and in a manner of his 
choosing. His inability to achieve this has led him to allege that 
there has been a breach of his rights (Maurice Arnold Tomlinson 
v. Television Jamaica LTD, CVM Television, The Public Broadcast-
ing Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p. 
3). The claimant is an attorney-at-law and a homosexual man. He 
is a citizen of Jamaica but became a landed immigrant of Canada 
in 2012, he was at the time of commencing the quest to have his 
message aired, employed as legal advisor for the international 
NGO Aids-Free World. He describes himself as an activist and 
as such he has organized several public events in an attempt to 
bring about changes in the attitude towards homosexuals in Ja-
maica and further to draw attention to the need for tolerance 
of minority groups as an effective tool to counter the spread of 
HIV and AIDS. The message he had sought to be aired was pre-
sented in what he describes as the »Love and Respect PA« video, 

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DIGNITAS ■ Constitutional Law
a 30 second video which was produced as a part of his advocacy 
campaign. He acts in it, portraying a homosexual man whose aunt 
reassures him when he complains of trying to get Jamaicans to 
respect his human rights as a gay man, that she respects and loves 
him (Maurice Arnold Tomlinson v. Television Jamaica LTD, CVM 
Television, The Public Broadcasting Corporation of Jamaica, 2012 
HCV 05676, 2013 JMCF Full 5, p. 5). The refusal to air occurred in 
Jamaica (Maurice Arnold Tomlinson v. Television Jamaica LTD, 
CVM Television, The Public Broadcasting Corporation of Jamaica, 
2012 HCV 05676, 2013 JMCF Full 5, p. 12).
The Court, when structuring the arguments, used the reason-
ing from a 1989 case of Trieger versus Canadian Broadcasting 
Corp: As to free speech, the right to speak does not necessar-
ily carry with it the right to make someone listen or the right to 
make someone else carry that message to the public (Maurice Ar-
nold Tomlinson v. Television Jamaica LTD, CVM Television, The 
Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 
2013 JMCF Full 5, p. 18) and the reasoning from a 1985 case of 
Re New Brunswick Broadcasting Co. Ltd. versus Canadian Radio 
Television and Telecommunications Commission: The freedom 
guaranteed by the Charter is a freedom to express and commu-
nicate ideas without restraint, whether orally or in print or by 
other means of communication. It is not a freedom to use some-
one else's property to do so. It gives no right to anyone to use 
someone's land or platform to make a speech, or someone else's 
printing press to publish his ideas. It gives no right to anyone 
to enter or use a public building for such purposes. And it gives 
no right to anyone to use the radio frequencies (Maurice Arnold 
Tomlinson v. Television Jamaica LTD, CVM Television, The Pub-
lic Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 
JMCF Full 5, p. 19). The Court added the reasoning from a 1983 
case of Haider versus Austria that in Europe under the Article 10 
of the European Convention on Human Rights the freedom of 
expression guarantee does not confer an unfettered right on any 
citizen to have access to radio or television to air his views except 
under exceptional circumstances (Maurice Arnold Tomlinson v. 
Television Jamaica LTD, CVM Television, The Public Broadcast-
ing Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 
5, p. 98). The Court also addressed editorial discretion, which it 
described in the context of licensed broadcasters, which does 

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
not mean the editor can exclude views he does not like or does 
not agree with as the grant of licenses is not about the privatiza-
tion of censorship but rather about regulating a public resource 
such as airwaves so that citizens derive the greatest benefit in 
order for them to play an effective role in democracy due to the 
fact that access to reliable and accurate information is vital to the 
functioning of a democratic state (Maurice Arnold Tomlinson v. 
Television Jamaica LTD, CVM Television, The Public Broadcasting 
Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p. 
109). Through such argumentation the Court found that licensed 
broadcasters are under an obligation to use the public domain 
in the public interest which is stated in their licence, furthermore 
this coincides with the duty of the broadcaster to provide infor-
mation on important public issues for the benefit of the public 
having accurate and reliable information about the matter. This 
argumentation leads the Court to accept the approach that no 
person can dictate to a private broadcaster that he should accept 
a particular advertisement advocating any particular position be-
cause the issue is not whether or not to accept the advertisement 
but rather whether the private broadcaster has carried out his 
obligation in the public interest, which is to inform the public 
on the particular issue (Maurice Arnold Tomlinson v. Television 
Jamaica LTD, CVM Television, The Public Broadcasting Corpora-
tion of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p. 112). In the 
light of the mentioned legal position, the Court decided that were 
it to accept the proposition of the claimant, it would mean the 
Court would now be getting into the business of telling editors 
what advertisements or events to broadcast but the regulation of 
broadcasters has not been given to the courts and it is not a job 
that any court would even contemplate accepting as that job is in 
Jamaica given to the Broadcasting Commission (Maurice Arnold 
Tomlinson v. Television Jamaica LTD, CVM Television, The Pub-
lic Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 
JMCF Full 5, p. 113). On the contrary, it was not even suggested 
that the defendants would fail to give a full, fair and adequate 
coverage of the issue of Homosexuality in Jamaica. The Court 
decided that the defendants have the editorial rights to decide 
how an issue is to be covered, which logically means that such 
an approach constitutes that it cannot be said that all who wish 
to speak on the issue must be allowed to do so by the defend-

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DIGNITAS ■ Constitutional Law
ants (Maurice Arnold Tomlinson v. Television Jamaica LTD, CVM 
Television, The Public Broadcasting Corporation of Jamaica, 2012 
HCV 05676, 2013 JMCF Full 5, p. 115).
We can see in this decision that a part of the right to free speech 
is also the editorial power to decide how they will deal with a spe-
cific issue in the society that needs to be informed on the issue 
of public interest. The Court dismissed in its entirety the claim 
because the freedom of expression and freedom to receive and 
disseminate information or ideas includes the right not to speak 
and not to receive or disseminate information, or as the Court put 
it, why should Mr Tomlinson's wish to exercise his right be more 
important than TVJ's or CVM's desire to exercise their right not to 
broadcast (Maurice Arnold Tomlinson v. Television Jamaica LTD, 
CVM Television, The Public Broadcasting Corporation of Jamaica, 
2012 HCV 05676, 2013 JMCF Full 5, p. 123). This was not the only 
insightful legal argument that we could find in this verdict as the 
Court also used a comparison in its legal argumentation: One can-
not shift the stumps while the bowler is running in and the bats-
man has assumed his batting stance in order to give the bowler 
a greater opportunity at dismissing the batsman (Maurice Arnold 
Tomlinson v. Television Jamaica LTD, CVM Television, The Pub-
lic Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 
JMCF Full 5, p. 121).
9. Findings and key notion
We proposed a reasearch question at the beginning of this pa-
per, regarding the background of freedom of speech as a human 
right, whether it is contingent on the perception or on the con-
text. The cases analyzed both in the historical part of this paper 
and the modern part of this paper showed that context is more 
important than perception of speech, when it comes to the argu-
mentation of a judge. This research paper, according to its find-
ings, advocates the importance of the context in which certain 
speech was made. We should avoid the use of perception to limit 
free speech as it may prove to be a wrong thing to do, especially 
given the nature of this human right. If we were to deem some 
speech as off limits in advance, based on the perception of it, we 
would find ourselves denying core democratic values and drifting 
towards authoritarian ideas.

153
DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
To put it more bluntly, if someone perceives a certain fact to 
be offensive to them, their perception cannot be a valid reason 
to limit free speech as a human right. The fact exists no matter 
the perception of it in society, this is why our research paper 
proposes a solution in the way of a safeguard in the form of 
context. Courts have been proven to resort to context but more 
in a practical course of action. We believe it is time for a more 
doctrinal method to theoretically strenghten this practical ap-
proach. Advocating for the context behind speech as a human 
right gives us an additional safeguard that can help determine 
how far can free speech reach and what can be encapsulated 
in it.
Furthermore, context is already the reason why the major-
ity of speech is observed as protected in the form of a human 
right. Facts should remain under the protection of this human 
right, no matter the perception they cause. For example, public 
statements made by Superintendant Clunis and Commisioner 
of Police Owen Ellington to Jamaican news stations during and 
after a police operation were not a fact, as the charges against 
Michael Troupe were dropped. But after the broadcast had aired 
all the viewers perceived Michael Troupe as a part of the scam-
ming operation ring and a person of criminal conduct. Jamaican 
court put into consideration the context in which the statement 
was made, it was during and after the police operation in the 
early hours of the morning. Public has the right to know the 
facts about political figures but in this case the context was such 
that no public interest was served by publishing misinformation 
as the public was clearly misinformed. Suffice to say, it would be 
ample enough to inform the public that a house was searched 
at half past five in the morning regarding the lottery scamming 
operation. The perception differs widely from the background 
context of the speech. Superintendant and the Commisioner of 
Police both had their own perception that was different from 
the fact. The only fact was that the charges were dropped.
This brings us to another important conclusion; if something 
is a fact, it should be stated as such, but if something is perceived 
as a sagacity of certain reality, it should be stated as an opinion. 
Opinions differ, but a fact is a fact. To put it in simpler terms, 
the prospect of living in a modern democratic society is to hear 
speech that one might find inappropriate, offensive or disparag-

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DIGNITAS ■ Constitutional Law
ing. That does not mean one must isolate oneself to avoid sit-
uations which cause unrest upon hearing unsettling opinions. 
Speech should not be viewed according to its perception and 
how it is perceived by each individual but instead should be put 
into context of all relevant circumstances. For what is perceived 
by some as offensive, can be perceived as complimentary by oth-
ers. This is a crucial disposition for opinions. Predilection for in-
clusion of opinions in speech is a completely conventional way 
of communication.
Opinions are protected by freedom of speech as a human right 
and should be protected in the same manner as stating the facts. 
The only difference is the background context, which would in 
this case be stating whether it is a personal opinion or a fact. The 
difference between the two opted recognitions was clear in the 
case of Maurice Arnold Tomlinson as the claimant against Televi-
sion Jamaica Ltd as the first defendant, CVM Television Ltd as the 
second defendant and The Public Broadcasting Corporation of 
Jamaica. Maurice Arnold Tomlinson had a perception that as a 
homosexual man and a gay rights activist he has a right to air his 
message with private broadcasters to advocate for the respect 
of gay rights in Jamaica. Jamaican court looked for the context 
and found that the background to assessing this practise of the 
mentioned human right was tied to the fact that there is no such 
thing as the freedom to use someone else's property to do so and 
it gives no right to anyone to use someone's land or platform to 
make a speech, or someone else's printing press to publish their 
own ideas. In the end it all came down to balancing two interests 
and it was decided that there is no valid reason why Mr. Tomlin-
son's wish to exercise his right was more important than TVJ's or 
CVM's desire to exercise their right not to broadcast it. This case 
also reflected why relying solely on perception of something is 
not enough to safeguard a human right.
The whole presented analysis of the verdicts also showed 
that free speech as a human right is much more nuanced than it 
strikes at first glance. We were able to go through the insides of 
the meaning of this human right as it is not straightwforward but 
it should, as we have proven, be put into a context. It is clear that 
we only touched the surface on the matter but more importantly 
we demonstrated that even a human right has its own context in 
which it strives or thrives.

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DIGNITAS ■ Is Freedom of Speech Underrated? The View from a Perspective of Human ...
Each of the analyzed cases showed to the reader that the con-
text in which the human right of free speech is put determines 
whether it will thrive or strive. Even if the context behind each 
case shows that free speech is not an absolute human right we 
should not dissuade ourselves from losing the standards to which 
free speech is measured and compared. We need this human right 
for the normal functioning of a democratic society and should 
look after it accordingly.
10. Conclusion
In conclusion, we observed how the context behind the hu-
man right of freedom of speech develops through the argumen-
tation of a judge in a certain case. The main research question of 
this paper on the background context of the freedom of speech 
as a human right was answered through the analysis of judicial 
arguments in an array of different cases that all tackled the same 
theme; the limits of free speech. The background context was 
heavily depended on the case and also on the arguments that 
the judge used to solve the legal question. There was no differ-
ence observed whether it was a court in the Caribbean or in the 
United States. There was always a process of balancing in accord-
ance to the facts of the case. Are these facts the backbone of the 
background context for a human right? The research paper af-
firms this. We have shown that a human right such as freedom of 
speech is conditioned not only by the facts of the case but also by 
the structure of the arguments that a judge makes.
The distinction whether a human right such as freedom of 
speech strives or thrives is not only dependant on the way a judge 
sees the case but also about the context of the human right, the 
setting it is put into and the factors that influence it. These things 
are outside the realm of legal provisions and can be found in 
social structures of the relationships in society. The background 
context is a framework far more outflanked than we can imagine. 
This is due to the fact that each case brings something new into 
contest. Sure enough, some cases share a striking resemblance 
but none are alike in a way that would enable a judge to mirror 
their arguments. Arguments can be structured similarly, but not 
mirrored. We saw this clearly when we analyzed five decades 
worth of cases brought forth in the United States. Approaches 

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DIGNITAS ■ Constitutional Law
change but the background context of a human right remains 
the same. This was affirmed by the cases analyzed which were 
brought forth in the Bahamas and in Jamaica. The main research 
purpose was to add the element of context into the doctrinal 
approach of evaluating freedom of speech as a human right. In 
this sense, the paper succeeded to show how there is an existant 
practical framework already in place where courts implement the 
deliberation of context into which a certain speech was said and 
put into. Such continued practise prompted this research paper 
to commend the addition of context into the evaluation of legal-
ity of limits to freedom of speech. Freedom of speech should be 
upheld by all means in a democratic society and there is a firm 
belief that evaluating the context is a better safeguard than rely-
ing on personal perception of speech. There should not be less 
free speech but more free speech and puting things into con-
text enables us to differentiate between facts and opinions with 
greater results by not imposing authoritarian approaches at the 
same time.
The circumstances of the cases around which the argumenta-
tion of the court revolved were distinctive but the background 
context of a human right was unchanged throughout. Be it through 
the use of case law approach or through the use of specific legal 
argumentation approach it was observed that a common theme 
can be established. Freedom of speech is contextual and not per-
ceived. We have shown in this research paper that speech cannot 
have its freedom depend on perception but rather on the context 
of it. The perception of speech and how the judge sees it in each 
case is not bound by the apprehension of the idea or the notion 
of it but by the context in which this idea is set down.
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