“Heartbeat of Opinion” Rethinking Freedom of Expression

News21.09.2020John Nery

Understanding freedom of expression as a four-fold right

Wesley Hohfeld, an American lawyer who died in 1918 (quite possibly of the Spanish flu), created an analytical system that allowed a clearer understanding of rights. He identified four kinds of rights: the privilege, the claim, the power, and the immunity.

I will not attempt to explain his system in detail; to be completely candid, I still get lost in the technical thicket. I will only try to sum it up through an example.

My personal phone: It’s mine; I have rights to it.

I have the right to use it. In the Hohfeld system, that’s called a privilege (sometimes also called a liberty). I have the privilege, for instance, to send a Viber message on it to—what do you call a group of plant enthusiasts?—a pot, or a pothos, of “plantitos.”

I have the right to not allow others to use it; that’s called a claim. I have claim against others, for example, not to use my cellphone to call overseas.

I have the right to transfer ownership, or allow use, of my cellphone to someone else. That’s called a power; I have power to waive, change, transfer my claim-right over my cellphone.

And I have the right to not allow others to waive, change, or transfer my claim-right over my cellphone. This is mine; no one should tell me what to do with it. That’s called immunity. I have immunity against others altering my claim-right over my cellphone (or, you know, from being voted off the island).

The four elements, or “incidents,” of Hohfeld’s system then: Privilege, claim, power, immunity.

While freedom of expression is not something we own, in the sense of property, we can still usefully think of it as a complex right, or a cluster of rights, according to Hohfeld’s system.

Freedom of expression is a privilege-right, a liberty: I use it, for instance, when I express an opinion: Say, that Health Secretary Francisco Duque III must resign. By what right can I say that? By my freedom of expression, understood as a privilege.

Freedom of expression is also a claim-right: I have claim against others not allowing me to use my privilege-right to express an opinion. By what right can I say that I will not allow others to prevent me from exercising my freedom of expression understood as a privilege? By my freedom of expression understood as a claim. (Incidentally, when I give up this claim, for instance when I prevent myself from expressing my own opinion that Secretary Duque must resign, I am censoring myself. Self-censorship is a voluntary if grudging ceding of my claim-right.)

Freedom of expression is a power-right too: I use it when I exercise my power to waive, change, transfer my claim-right or to modify my use of my privilege-right. For instance, I can change my opinion about the need for Secretary Duque to resign; when, for instance, I express the opinion that it is President Duterte himself who must resign, because he is too sickly, too distracted, to oversee the country’s life-or-death struggle against the coronavirus pandemic, I am using my freedom of expression as a power-right. By what right can I do that? By my freedom of expression understood as a power.

Freedom of expression, finally, is also an immunity-right: I use it when I insist that I am immune to the State forcing me to change my opinion or, worse, to keep silence. By what right can I assert that? By my freedom of expression understood as immunity. When the State enforces silence by criminalizing a speech act as inciting to terrorism, it violates all of our immunity-rights, and thus diminishes freedom of expression itself.

Learning Series on Freedom of Expression
A slide on the discussion on Hohfeld SystemFNF Philippines

What can we do to deepen our understanding, and our practice, of freedom of expression?

In our petition before the Supreme Court, we offer three hypothetical examples to demonstrate the constitutionally impermissible vagueness of the Anti-Terrorism Act. First, a concerned citizen’s call on social media to boycott the companies of the President’s crony; second, a teacher’s appeal on Facebook to people who are going hungry, to gather at the local gym where relief goods are stocked; third, a worker’s criticism of the President’s incoherent ramblings on TV. Hypothetical examples, but wrenched from everyday Philippine reality.

We ask the Court: Will these examples be classified as incitements to terrorism under the new law?

Under Hohfeld’s analytical system, we can understand the specific nature of the anti-terror law’s assaults on freedom of expression and related rights.

It puts pressure on the individual or the institution in their exercise of their claim-rights. And it undermines, subverts even, a citizen’s immunity-rights. In a word, it diminishes the citizen’s right to put our fundamental freedom to use.—John Nery