Permissible limitations on the right to an opinion

By Nadrat Mazrui

I’m sure you’ve heard the expression that everyone is entitled to his or her opinion. Perhaps you’ve said it to yourself to begin an argument or to take one to a close.

The problem with this statement is that it is used to shelter beliefs that should have been long abandoned. Is this a bit too harsh? Perhaps. The expression has been now too commonly interchanged for “I can say whatever I like”.

Most of the time, we are quick to yell “I’m entitled to my opinion” or that we have a right to an opinion. This is in all senses a fallacy, a mistaken belief. Not that the right doesn’t exist; it does. However, whether or not one has a particular entitlement or right is irrelevant to whether one assertion is true or false. Every time I write, I make a point of considering my readers as “philosophers”. A bit cheesy, I know, but that is my perception.

It is thought that ancient Athens Democratic ideology may have emerged in the late 6th Century. Concepts of freedom of speech can be found in early human rights documents. England’s Bill of Rights, 1689, legally established the constitutional right. The Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution, affirmed the freedom as an inalienable right.

John Stuart Mill argued that without human freedom, there could be no progress in science, law or politics, which, according to Mill, required free discussion of opinion. Mill argued that truth drives out falsity, and therefore the free expression of ideas should not be feared. Noam Chomsky states that if you believe in freedom of speech, you believe in freedom for views you don’t like.

First things first; what is an opinion? It is important that we distinguish between opinion and common beliefs.  Plato believes that an opinion has a degree of subjectivity and uncertainty to it. It can range from preferences to tastes through to views grounded in technical expertise. It would be silly to argue on the first opinion – such as which ice cream, in your opinion, is better. The problem is that sometimes opinions are used interchangeably to denote both taste and preferences.

This is why amateurs think they can argue with scientists on matters regarding the weather perhaps, and still have their opinion “respected”. No one has the right to stop people thinking and saying whatever they want, this is true. But we should not confuse not having your views taken seriously and not having your views taken at all.

Same right, different colours

The same way that one has a right to an opinion is the same way that everybody else has a right to ignore your opinion.  Never be foolish enough to believe that everyone has to listen to your opinion. There is no such obligation. The Constitution, under Article 32, guarantees an equal right to have an opinion; it does not, however, guarantee that every opinion is equal.

Many confuse the notion of the equal right to an opinion with the idea that every opinion is equal.  We all have a right to our opinion; this however doesn’t make our opinion right. The right to an opinion under Article 32 is without interference and cannot be subject to any exception or restriction: “…every person has the right to freedom of conscience, religion, thought, belief and opinion.”

As with every right contained under the Bill of Rights, this one is not absolute. The right carries with it responsibilities and may be restricted. The right to an opinion is closely associated with the right and freedom of expression.

Common restrictions

The right to freedom of opinion and expression is contained in various international conventions and treaties. It is contained in Articles 19 and 20 of the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the rights of the Child, and the Convention on the Rights of Persons with Disabilities.

Many other rights and freedoms relate to the right to freedom of opinion and may be relevant to the right to freedom of thought, conscience and religion; the right to peaceful assembly and; the right to freedom of association

The common restrictions are for respect of the rights or reputations of others, and for the protection of national security or public order or morals. One of the things that should be clear is that human rights apply to children and young people, just as they do to adults. Article 12 of the UNRC says that opinions of young people should be considered when people make decisions about things that involve them. The right to freedom of expression is also recognised as a human right under Article 19 of the Universal Declaration of Human Rights.

This does not mean that people have to express an opinion if they don’t want to. They can refuse to give their opinion for any reason. Not every statement of opinion is protected. If a statement implies some false underlying fact, it could be defamatory. To determine whether a statement is an opinion or a fact, courts generally look at the totality of circumstances surrounding the statement and its publication to determine if it is defamatory. Common limitations relate to libel and slander.

The right gives one the power to articulate one’s opinions and without fear of government retaliation or censorship, or societal sanctions. Limitations can, however, be justified under the harm principle articulated by John Stuart Mill in “On Liberty”, where he argued, “…the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

The term “offense principle” is also used to expand the range of free speech limitations to prohibit forms of expression considered offensive. Joel Feinberg, who argued that Mill’s harm principle does not provide sufficient protection against wrongful behaviours of others, introduced it in 1985.

Let’s take the Danish cartoonist as an example, who created the controversial cartoon of the Islamic prophet. He expressed his opinion, but due to the harm principle, he met with strong violent reactions. Even though he used his right of free speech and opinion, it was, in fact, intolerable. It was his right to an opinion, yes, but it was not necessarily right.

Next time you hear someone say they have a right to an opinion, ask them why they would think that way. I’m sure you will have quite an arresting conversation!