argumentative essay on freedom of speech should be restricted

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Freedom of Speech

[ Editor’s Note: The following new entry by Jeffrey W. Howard replaces the former entry on this topic by the previous author. ]

Human beings have significant interests in communicating what they think to others, and in listening to what others have to say. These interests make it difficult to justify coercive restrictions on people’s communications, plausibly grounding a moral right to speak (and listen) to others that is properly protected by law. That there ought to be such legal protections for speech is uncontroversial among political and legal philosophers. But disagreement arises when we turn to the details. What are the interests or values that justify this presumption against restricting speech? And what, if anything, counts as an adequate justification for overcoming the presumption? This entry is chiefly concerned with exploring the philosophical literature on these questions.

The entry begins by distinguishing different ideas to which the term “freedom of speech” can refer. It then reviews the variety of concerns taken to justify freedom of speech. Next, the entry considers the proper limits of freedom of speech, cataloging different views on when and why restrictions on communication can be morally justified, and what considerations are relevant when evaluating restrictions. Finally, it considers the role of speech intermediaries in a philosophical analysis of freedom of speech, with special attention to internet platforms.

1. What is Freedom of Speech?

2.1 listener theories, 2.2 speaker theories, 2.3 democracy theories, 2.4 thinker theories, 2.5 toleration theories, 2.6 instrumental theories: political abuse and slippery slopes, 2.7 free speech skepticism, 3.1 absoluteness, coverage, and protection, 3.2 the limits of free speech: external constraints, 3.3 the limits of free speech: internal constraints, 3.4 proportionality: chilling effects and political abuse, 3.5 necessity: the counter-speech alternative, 4. the future of free speech theory: platform ethics, other internet resources, related entries.

In the philosophical literature, the terms “freedom of speech”, “free speech”, “freedom of expression”, and “freedom of communication” are mostly used equivalently. This entry will follow that convention, notwithstanding the fact that these formulations evoke subtly different phenomena. For example, it is widely understood that artistic expressions, such as dancing and painting, fall within the ambit of this freedom, even though they don’t straightforwardly seem to qualify as speech , which intuitively connotes some kind of linguistic utterance (see Tushnet, Chen, & Blocher 2017 for discussion). Still, they plainly qualify as communicative activity, conveying some kind of message, however vague or open to interpretation it may be.

Yet the extension of “free speech” is not fruitfully specified through conceptual analysis alone. The quest to distinguish speech from conduct, for the purpose of excluding the latter from protection, is notoriously thorny (Fish 1994: 106), despite some notable attempts (such as Greenawalt 1989: 58ff). As John Hart Ely writes concerning Vietnam War protesters who incinerated their draft cards, such activity is “100% action and 100% expression” (1975: 1495). It is only once we understand why we should care about free speech in the first place—the values it instantiates or serves—that we can evaluate whether a law banning the burning of draft cards (or whatever else) violates free speech. It is the task of a normative conception of free speech to offer an account of the values at stake, which in turn can illuminate the kinds of activities wherein those values are realized, and the kinds of restrictions that manifest hostility to those values. For example, if free speech is justified by the value of respecting citizens’ prerogative to hear many points of view and to make up their own minds, then banning the burning of draft cards to limit the views to which citizens will be exposed is manifestly incompatible with that purpose. If, in contrast, such activity is banned as part of a generally applied ordinance restricting fires in public, it would likely raise no free-speech concerns. (For a recent analysis of this issue, see Kramer 2021: 25ff).

Accordingly, the next section discusses different conceptions of free speech that arise in the philosophical literature, each oriented to some underlying moral or political value. Before turning to the discussion of those conceptions, some further preliminary distinctions will be useful.

First, we can distinguish between the morality of free speech and the law of free speech. In political philosophy, one standard approach is to theorize free speech as a requirement of morality, tracing the implications of such a theory for law and policy. Note that while this is the order of justification, it need not be the order of investigation; it is perfectly sensible to begin by studying an existing legal protection for speech (such as the First Amendment in the U.S.) and then asking what could justify such a protection (or something like it).

But of course morality and law can diverge. The most obvious way they can diverge is when the law is unjust. Existing legal protections for speech, embodied in the positive law of particular jurisdictions, may be misguided in various ways. In other words, a justified legal right to free speech, and the actual legal right to free speech in the positive law of a particular jurisdiction, can come apart. In some cases, positive legal rights might protect too little speech. For example, some jurisdictions’ speech laws make exceptions for blasphemy, such that criminalizing blasphemy does not breach the legal right to free speech within that legal system. But clearly one could argue that a justified legal right to free speech would not include any such exception. In other cases, positive legal rights might perhaps protect too much speech. Consider the fact that, as a matter of U.S. constitutional precedent, the First Amendment broadly protects speech that expresses or incites racial or religious hatred. Plainly we could agree that this is so as a matter of positive law while disagreeing about whether it ought to be so. (This is most straightforwardly true if we are legal positivists. These distinctions are muddied by moralistic theories of constitutional interpretation, which enjoin us to interpret positive legal rights in a constitutional text partly through the prism of our favorite normative political theory; see Dworkin 1996.)

Second, we can distinguish rights-based theories of free speech from non-rights-based theories. For many liberals, the legal right to free speech is justified by appealing to an underlying moral right to free speech, understood as a natural right held by all persons. (Some use the term human right equivalently—e.g., Alexander 2005—though the appropriate usage of that term is contested.) The operative notion of a moral right here is that of a claim-right (to invoke the influential analysis of Hohfeld 1917); it thereby correlates to moral duties held by others (paradigmatically, the state) to respect or protect the right. Such a right is natural in that it exerts normative force independently of whether anyone thinks it does, and regardless of whether it is codified into the law. A tyrannical state that imprisons dissidents acts unjustly, violating moral rights, even if there is no legal right to freedom of expression in its legal system.

For others, the underlying moral justification for free speech law need not come in the form of a natural moral right. For example, consequentialists might favor a legal right to free speech (on, e.g., welfare-maximizing grounds) without thinking that it tracks any underlying natural right. Or consider democratic theorists who have defended legal protections for free speech as central to democracy. Such theorists may think there is an underlying natural moral right to free speech, but they need not (especially if they hold an instrumental justification for democracy). Or consider deontologists who have argued that free speech functions as a kind of side-constraint on legitimate state action, requiring that the state always justify its decisions in a manner that respects citizens’ autonomy (Scanlon 1972). This theory does not cast free speech as a right, but rather as a principle that forbids the creation of laws that restrict speech on certain grounds. In the Hohfeldian analysis (Hohfeld 1917), such a principle may be understood as an immunity rather than a claim-right (Scanlon 2013: 402). Finally, some “minimalists” (to use a designation in Cohen 1993) favor legal protection for speech principally in response to government malice, corruption, and incompetence (see Schauer 1982; Epstein 1992; Leiter 2016). Such theorists need not recognize any fundamental moral right, either.

Third, among those who do ground free speech in a natural moral right, there is scope for disagreement about how tightly the law should mirror that right (as with any right; see Buchanan 2013). It is an open question what the precise legal codification of the moral right to free speech should involve. A justified legal right to freedom of speech may not mirror the precise contours of the natural moral right to freedom of speech. A raft of instrumental concerns enters the downstream analysis of what any justified legal right should look like; hence a defensible legal right to free speech may protect more speech (or indeed less speech) than the underlying moral right that justifies it. For example, even if the moral right to free speech does not protect so-called hate speech, such speech may still merit legal protection in the final analysis (say, because it would be too risky to entrust states with the power to limit those communications).

2. Justifying Free Speech

I will now examine several of the morally significant considerations taken to justify freedom of expression. Note that while many theorists have built whole conceptions of free speech out of a single interest or value alone, pluralism in this domain remains an option. It may well be that a plurality of interests serves to justify freedom of expression, properly understood (see, influentially, Emerson 1970 and Cohen 1993).

Suppose a state bans certain books on the grounds that it does not want us to hear the messages or arguments contained within them. Such censorship seems to involve some kind of insult or disrespect to citizens—treating us like children instead of adults who have a right to make up our own minds. This insight is fundamental in the free speech tradition. On this view, the state wrongs citizens by arrogating to itself the authority to decide what messages they ought to hear. That is so even if the state thinks that the speech will cause harm. As one author puts it,

the government may not suppress speech on the ground that the speech is likely to persuade people to do something that the government considers harmful. (Strauss 1991: 335)

Why are restrictions on persuasive speech objectionable? For some scholars, the relevant wrong here is a form of disrespect for citizens’ basic capacities (Dworkin 1996: 200; Nagel 2002: 44). For others, the wrong here inheres in a violation of the kind of relationship the state should have with its people: namely, that it should always act from a view of them as autonomous, and so entitled to make up their own minds (Scanlon 1972). It would simply be incompatible with a view of ourselves as autonomous—as authors of our own lives and choices—to grant the state the authority to pre-screen which opinions, arguments, and perspectives we should be allowed to think through, allowing us access only to those of which it approves.

This position is especially well-suited to justify some central doctrines of First Amendment jurisprudence. First, it justifies the claim that freedom of expression especially implicates the purposes with which the state acts. There are all sorts of legitimate reasons why the state might restrict speech (so-called “time, place, and manner” restrictions)—for example, noise curfews in residential neighborhoods, which do not raise serious free speech concerns. Yet when the state restricts speech with the purpose of manipulating the communicative environment and controlling the views to which citizens are exposed, free speech is directly affronted (Rubenfeld 2001; Alexander 2005; Kramer 2021). To be sure, purposes are not all that matter for free speech theory. For example, the chilling effects of otherwise justified speech regulations (discussed below) are seldom intended. But they undoubtedly matter.

Second, this view justifies the related doctrines of content neutrality and viewpoint neutrality (see G. Stone 1983 and 1987) . Content neutrality is violated when the state bans discussion of certain topics (“no discussion of abortion”), whereas viewpoint neutrality is violated when the state bans advocacy of certain views (“no pro-choice views may be expressed”). Both affront free speech, though viewpoint-discrimination is especially egregious and so even harder to justify. While listener autonomy theories are not the only theories that can ground these commitments, they are in a strong position to account for their plausibility. Note that while these doctrines are central to the American approach to free speech, they are less central to other states’ jurisprudence (see A. Stone 2017).

Third, this approach helps us see that free speech is potentially implicated whenever the state seeks to control our thoughts and the processes through which we form beliefs. Consider an attempt to ban Marx’s Capital . As Marx is deceased, he is probably not wronged through such censorship. But even if one held idiosyncratic views about posthumous rights, such that Marx were wronged, it would be curious to think this was the central objection to such censorship. Those with the gravest complaint would be the living adults who have the prerogative to read the book and make up their own minds about it. Indeed free speech may even be implicated if the state banned watching sunsets or playing video games on the grounds that is disapproved of the thoughts to which such experiences might give rise (Alexander 2005: 8–9; Kramer 2021: 22).

These arguments emphasize the noninstrumental imperative of respecting listener autonomy. But there is an instrumental version of the view. Our autonomy interests are not merely respected by free speech; they are promoted by an environment in which we learn what others have to say. Our interests in access to information is served by exposure to a wide range of viewpoints about both empirical and normative issues (Cohen 1993: 229), which help us reflect on what goals to choose and how best to pursue them. These informational interests are monumental. As Raz suggests, if we had to choose whether to express our own views on some question, or listen to the rest of humanity’s views on that question, we would choose the latter; it is our interest as listeners in the public good of a vibrant public discourse that, he thinks, centrally justifies free speech (1991).

Such an interest in acquiring justified beliefs, or in accessing truth, can be defended as part of a fully consequentialist political philosophy. J.S. Mill famously defends free speech instrumentally, appealing to its epistemic benefits in On Liberty . Mill believes that, given our fallibility, we should routinely keep an open mind as to whether a seemingly false view may actually be true, or at least contain some valuable grain of truth. And even where a proposition is manifestly false, there is value in allowing its expression so that we can better apprehend why we take it to be false (1859: chapter 2), enabled through discursive conflict (cf. Simpson 2021). Mill’s argument focuses especially on the benefits to audiences:

It is is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. (1859: chapter 2, p. 94)

These views are sometimes associated with the idea of a “marketplace of ideas”, whereby the open clash of views inevitably leads to the correct ones winning out in debate. Few in the contemporary literature holds such a strong teleological thesis about the consequences of unrestricted debate (e.g., see Brietzke 1997; cf. Volokh 2011). Much evidence from behavioral economics and social psychology, as well as insights about epistemic injustice from feminist epistemology, strongly suggest that human beings’ rational powers are seriously limited. Smug confidence in the marketplace of ideas belies this. Yet it is doubtful that Mill held such a strong teleological thesis (Gordon 1997). Mill’s point was not that unrestricted discussion necessarily leads people to acquire the truth. Rather, it is simply the best mechanism available for ascertaining the truth, relative to alternatives in which some arbiter declares what he sees as true and suppresses what he sees as false (see also Leiter 2016).

Note that Mill’s views on free speech in chapter 2 in On Liberty are not simply the application of the general liberty principle defended in chapter 1 of that work; his view is not that speech is anodyne and therefore seldom runs afoul of the harm principle. The reason a separate argument is necessary in chapter 2 is precisely that he is carving out a partial qualification of the harm principle for speech (on this issue see Jacobson 2000, Schauer 2011b, and Turner 2014). On Mill’s view, plenty of harmful speech should still be allowed. Imminently dangerous speech, where there is no time for discussion before harm eventuates, may be restricted; but where there is time for discussion, it must be allowed. Hence Mill’s famous example that vociferous criticism of corn dealers as

starvers of the poor…ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer. (1859: chapter 3, p. 100)

The point is not that such speech is harmless; it’s that the instrumental benefits of permitting its expressions—and exposing its falsehood through public argument—justify the (remaining) costs.

Many authors have unsurprisingly argued that free speech is justified by our interests as speakers . This family of arguments emphasizes the role of speech in the development and exercise of our personal autonomy—our capacity to be the reflective authors of our own lives (Baker 1989; Redish 1982; Rawls 2005). Here an emphasis on freedom of expression is apt; we have an “expressive interest” (Cohen 1993: 224) in declaring our views—about the good life, about justice, about our identity, and about other aspects of the truth as we see it.

Our interests in self-expression may not always depend on the availability of a willing audience; we may have interests simply in shouting from the rooftops to declare who we are and what we believe, regardless of who else hears us. Hence communications to oneself—for example, in a diary or journal—are plausibly protected from interference (Redish 1992: 30–1; Shiffrin 2014: 83, 93; Kramer 2021: 23).

Yet we also have distinctive interests in sharing what we think with others. Part of how we develop our conceptions of the good life, forming judgments about how to live, is precisely through talking through the matter with others. This “deliberative interest” in directly served through opportunities to tell others what we think, so that we can learn from their feedback (Cohen 1993). Such encounters also offer opportunities to persuade others to adopt our views, and indeed to learn through such discussions who else already shares our views (Raz 1991).

Speech also seems like a central way in which we develop our capacities. This, too, is central to J.S. Mill’s defense of free speech, enabling people to explore different perspectives and points of view (1859). Hence it seems that when children engage in speech, to figure out what they think and to use their imagination to try out different ways of being in the world, they are directly engaging this interest. That explains the intuition that children, and not just adults, merit at least some protection under a principle of freedom of speech.

Note that while it is common to refer to speaker autonomy , we could simply refer to speakers’ capacities. Some political liberals hold that an emphasis on autonomy is objectionably Kantian or otherwise perfectionist, valorizing autonomy as a comprehensive moral ideal in a manner that is inappropriate for a liberal state (Cohen 1993: 229; Quong 2011). For such theorists, an undue emphasis on autonomy is incompatible with ideals of liberal neutrality toward different comprehensive conceptions of the good life (though cf. Shiffrin 2014: 81).

If free speech is justified by the importance of our interests in expressing ourselves, this justifies negative duties to refrain from interfering with speakers without adequate justification. Just as with listener theories, a strong presumption against content-based restrictions, and especially against viewpoint discrimination, is a clear requirement of the view. For the state to restrict citizens’ speech on the grounds that it disfavors what they have to say would affront the equal freedom of citizens. Imagine the state were to disallow the expression of Muslim or Jewish views, but allow the expression of Christian views. This would plainly transgress the right to freedom of expression, by valuing certain speakers’ interests in expressing themselves over others.

Many arguments for the right to free speech center on its special significance for democracy (Cohen 1993; Heinze 2016: Heyman 2009; Sunstein 1993; Weinstein 2011; Post 1991, 2009, 2011). It is possible to defend free speech on the noninstrumental ground that it is necessary to respect agents as democratic citizens. To restrict citizens’ speech is to disrespect their status as free and equal moral agents, who have a moral right to debate and decide the law for themselves (Rawls 2005).

Alternatively (or additionally), one can defend free speech on the instrumental ground that free speech promotes democracy, or whatever values democracy is meant to serve. So, for example, suppose the purpose of democracy is the republican one of establishing a state of non-domination between relationally egalitarian citizens; free speech can be defended as promoting that relation (Whitten 2022; Bonotti & Seglow 2022). Or suppose that democracy is valuable because of its role in promoting just outcomes (Arneson 2009) or tending to track those outcomes in a manner than is publicly justifiable (Estlund 2008) or is otherwise epistemically valuable (Landemore 2013).

Perhaps free speech doesn’t merely respect or promote democracy; another framing is that it is constitutive of it (Meiklejohn 1948, 1960; Heinze 2016). As Rawls says: “to restrict or suppress free political speech…always implies at least a partial suspension of democracy” (2005: 254). On this view, to be committed to democracy just is , in part, to be committed to free speech. Deliberative democrats famously contend that voting merely punctuates a larger process defined by a commitment to open deliberation among free and equal citizens (Gutmann & Thompson 2008). Such an unrestricted discussion is marked not by considerations of instrumental rationality and market forces, but rather, as Habermas puts it, “the unforced force of the better argument” (1992 [1996: 37]). One crucial way in which free speech might be constitutive of democracy is if it serves as a legitimation condition . On this view, without a process of open public discourse, the outcomes of the democratic decision-making process lack legitimacy (Dworkin 2009, Brettschneider 2012: 75–78, Cohen 1997, and Heinze 2016).

Those who justify free speech on democratic grounds may view this as a special application of a more general insight. For example, Scanlon’s listener theory (discussed above) contends that the state must always respect its citizens as capable of making up their own minds (1972)—a position with clear democratic implications. Likewise, Baker is adamant that both free speech and democracy are justified by the same underlying value of autonomy (2009). And while Rawls sees the democratic role of free speech as worthy of emphasis, he is clear that free speech is one of several basic liberties that enable the development and exercise of our moral powers: our capacities for a sense of justice and for the rational pursuit a lifeplan (2005). In this way, many theorists see the continuity between free speech and our broader interests as moral agents as a virtue, not a drawback (e.g., Kendrick 2017).

Even so, some democracy theorists hold that democracy has a special role in a theory of free speech, such that political speech in particular merits special protection (for an overview, see Barendt 2005: 154ff). One consequence of such views is that contributions to public discourse on political questions merit greater protection under the law (Sunstein 1993; cf. Cohen 1993: 227; Alexander 2005: 137–8). For some scholars, this may reflect instrumental anxieties about the special danger that the state will restrict the political speech of opponents and dissenters. But for others, an emphasis on political speech seems to reflect a normative claim that such speech is genuinely of greater significance, meriting greater protection, than other kinds of speech.

While conventional in the free speech literature, it is artificial to separate out our interests as speakers, listeners, and democratic citizens. Communication, and the thinking that feeds into it and that it enables, invariably engages our interests and activities across all these capacities. This insight is central to Seana Shiffrin’s groundbreaking thinker-based theory of freedom of speech, which seeks to unify the range of considerations that have informed the traditional theories (2014). Like other theories (e.g., Scanlon 1978, Cohen 1993), Shiffrin’s theory is pluralist in the range of interests it appeals to. But it offers a unifying framework that explains why this range of interests merits protection together.

On Shiffrin’s view, freedom of speech is best understood as encompassing both freedom of communication and freedom of thought, which while logically distinct are mutually reinforcing and interdependent (Shiffrin 2014: 79). Shiffrin’s account involves several profound claims about the relation between communication and thought. A central contention is that “free speech is essential to the development, functioning, and operation of thinkers” (2014: 91). This is, in part, because we must often externalize our ideas to articulate them precisely and hold them at a distance where we can evaluate them (p. 89). It is also because we work out what we think largely by talking it through with others. Such communicative processes may be monological, but they are typically dialogical; speaker and listener interests are thereby mutually engaged in an ongoing manner that cannot be neatly disentangled, as ideas are ping-ponged back and forth. Moreover, such discussions may concern democratic politics—engaging our interests as democratic citizens—but of course they need not. Aesthetics, music, local sports, the existence of God—these all are encompassed (2014: 92–93). Pace prevailing democratic theories,

One’s thoughts about political affairs are intrinsically and ex ante no more and no less central to the human self than thoughts about one’s mortality or one’s friends. (Shiffrin 2014: 93)

The other central aspect of Shiffrin’s view appeals to the necessity of communication for successfully exercising our moral agency. Sincere communication enables us

to share needs, emotions, intentions, convictions, ambitions, desires, fantasies, disappointments, and judgments. Thereby, we are enabled to form and execute complex cooperative plans, to understand one another, to appreciate and negotiate around our differences. (2014: 1)

Without clear and precise communication of the sort that only speech can provide, we cannot cooperate to discharge our collective obligations. Nor can we exercise our normative powers (such as consenting, waiving, or promising). Our moral agency thus depends upon protected channels through which we can relay our sincere thoughts to one another. The central role of free speech is to protect those channels, by ensuring agents are free to share what they are thinking without fear of sanction.

The thinker-based view has wide-ranging normative implications. For example, by emphasizing the continuity of speech and thought (a connection also noted in Macklem 2006 and Gilmore 2011), Shiffrin’s view powerfully explains the First Amendment doctrine that compelled speech also constitutes a violation of freedom of expression. Traditional listener- and speaker-focused theories seemingly cannot explain what is fundamentally objectionable with forcing someone to declare a commitment to something, as with children compelled to pledge allegiance to the American flag ( West Virginia State Board of Education v. Barnette 1943). “What seems most troubling about the compelled pledge”, Shiffrin writes,

is that the motive behind the regulation, and its possible effect, is to interfere with the autonomous thought processes of the compelled speaker. (2014: 94)

Further, Shiffrin’s view explains why a concern for free speech does not merely correlate to negative duties not to interfere with expression; it also supports positive responsibilities on the part of the state to educate citizens, encouraging and supporting their development and exercise as thinking beings (2014: 107).

Consider briefly one final family of free speech theories, which appeal to the role of toleration or self-restraint. On one argument, freedom of speech is important because it develops our character as liberal citizens, helping us tame our illiberal impulses. The underlying idea of Lee Bollinger’s view is that liberalism is difficult; we recurrently face temptation to punish those who hold contrary views. Freedom of speech helps us to practice the general ethos of toleration in a manner than fortifies our liberal convictions (1986). Deeply offensive speech, like pro-Nazi speech, is protected precisely because toleration in these enormously difficult cases promotes “a general social ethic” of toleration more generally (1986: 248), thereby restraining unjust exercises of state power overall. This consequentialist argument treats the protection of offensive speech not as a tricky borderline case, but as “integral to the central functions of the principle of free speech” (1986: 133). It is precisely because tolerating evil speech involves “extraordinary self-restraint” (1986: 10) that it works its salutary effects on society generally.

The idea of self-restraint arises, too, in Matthew Kramer’s recent defense of free speech. Like listener theories, Kramer’s strongly deontological theory condemns censorship aimed at protecting audiences from exposure to misguided views. At the core of his theory is the thesis that the state’s paramount moral responsibility is to furnish the social conditions that serve the development and maintenance of citizens’ self-respect and respect for others. The achievement of such an ethically resilient citizenry, on Kramer’s view, has the effect of neutering the harmfulness of countless harmful communications. “Securely in a position of ethical strength”, the state “can treat the wares of pornographers and the maunderings of bigots as execrable chirps that are to be endured with contempt” (Kramer 2021: 147). In contrast, in a society where the state has failed to do its duty of inculcating a robust liberal-egalitarian ethos, the communication of illiberal creeds may well pose a substantial threat. Yet for the state then to react by banning such speech is

overweening because with them the system’s officials take control of communications that should have been defused (through the system’s fulfillment of its moral obligations) without prohibitory or preventative impositions. (2021: 147)

(One might agree with Kramer that this is so, but diverge by arguing that the state—having failed in its initial duty—ought to take measures to prevent the harms that flow from that failure.)

These theories are striking in that they assume that a chief task of free speech theory is to explain why harmful speech ought to be protected. This is in contrast to those who think that the chief task of free speech theory is to explain our interests in communicating with others, treating the further issue of whether (wrongfully) harmful communications should be protected as an open question, with different reasonable answers available (Kendrick 2017). In this way, toleration theories—alongside a lot of philosophical work on free speech—seem designed to vindicate the demanding American legal position on free speech, one unshared by virtually all other liberal democracies.

One final family of arguments for free speech appeals to the danger of granting the state powers it may abuse. On this view, we protect free speech chiefly because if we didn’t, it would be far easier for the state to silence its political opponents and enact unjust policies. On this view, a state with censorial powers is likely to abuse them. As Richard Epstein notes, focusing on the American case,

the entire structure of federalism, divided government, and the system of checks and balances at the federal level shows that the theme of distrust has worked itself into the warp and woof of our constitutional structure.

“The protection of speech”, he writes, “…should be read in light of these political concerns” (Epstein 1992: 49).

This view is not merely a restatement of the democracy theory; it does not affirm free speech as an element of valuable self-governance. Nor does it reduce to the uncontroversial thought that citizens need freedom of speech to check the behavior of fallible government agents (Blasi 1977). One need not imagine human beings to be particularly sinister to insist (as democracy theorists do) that the decisions of those entrusted with great power be subject to public discussion and scrutiny. The argument under consideration here is more pessimistic about human nature. It is an argument about the slippery slope that we create even when enacting (otherwise justified) speech restrictions; we set an unacceptable precedent for future conduct by the state (see Schauer 1985). While this argument is theoretical, there is clearly historical evidence for it, as in the manifold cases in which bans on dangerous sedition were used to suppress legitimate war protest. (For a sweeping canonical study of the uses and abuses of speech regulations during wartime, with a focus on U.S. history, see G. Stone 2004.)

These instrumental concerns could potentially justify the legal protection for free speech. But they do not to attempt to justify why we should care about free speech as a positive moral ideal (Shiffrin 2014: 83n); they are, in Cohen’s helpful terminology, “minimalist” rather than “maximalist” (Cohen 1993: 210). Accordingly, they cannot explain why free speech is something that even the most trustworthy, morally competent administrations, with little risk of corruption or degeneration, ought to respect. Of course, minimalists will deny that accounting for speech’s positive value is a requirement of a theory of free speech, and that critiquing them for this omission begs the question.

Pluralists may see instrumental concerns as valuably supplementing or qualifying noninstrumental views. For example, instrumental concerns may play a role in justifying deviations between the moral right to free communication, on the one hand, and a properly specified legal right to free communication, on the other. Suppose that there is no moral right to engage in certain forms of harmful expression (such as hate speech), and that there is in fact a moral duty to refrain from such expression. Even so, it does not follow automatically that such a right ought to be legally enforced. Concerns about the dangers of granting the state such power plausibly militate against the enforcement of at least some of our communicative duties—at least in those jurisdictions that lack robust and competently administered liberal-democratic safeguards.

This entry has canvassed a range of views about what justifies freedom of expression, with particular attention to theories that conceive free speech as a natural moral right. Clearly, the proponents of such views believe that they succeed in this justificatory effort. But others dissent, doubting that the case for a bona fide moral right to free speech comes through. Let us briefly note the nature of this challenge from free speech skeptics , exploring a prominent line of reply.

The challenge from skeptics is generally understood as that of showing that free speech is a special right . As Leslie Kendrick notes,

the term “special right” generally requires that a special right be entirely distinct from other rights and activities and that it receive a very high degree of protection. (2017: 90)

(Note that this usage is not to be confused from the alternative usage of “special right”, referring to conditional rights arising out of particular relationships; see Hart 1955.)

Take each aspect in turn. First, to vindicate free speech as a special right, it must serve some distinctive value or interest (Schauer 2015). Suppose free speech were just an implication of a general principle not to interfere in people’s liberty without justification. As Joel Feinberg puts it, “Liberty should be the norm; coercion always needs some special justification” (1984: 9). In such a case, then while there still might be contingent, historical reasons to single speech out in law as worthy of protection (Alexander 2005: 186), such reasons would not track anything especially distinctive about speech as an underlying moral matter. Second, to count as a special right, free speech must be robust in what it protects, such that only a compelling justification can override it (Dworkin 2013: 131). This captures the conviction, prominent among American constitutional theorists, that “any robust free speech principle must protect at least some harmful speech despite the harm it may cause” (Schauer 2011b: 81; see also Schauer 1982).

If the task of justifying a moral right to free speech requires surmounting both hurdles, it is a tall order. Skeptics about a special right to free speech doubt that the order can be met, and so deny that a natural moral right to freedom of expression can be justified (Schauer 2015; Alexander & Horton 1983; Alexander 2005; Husak 1985). But these theorists may be demanding too much (Kendrick 2017). Start with the claim that free speech must be distinctive. We can accept that free speech be more than simply one implication of a general presumption of liberty. But need it be wholly distinctive? Consider the thesis that free speech is justified by our autonomy interests—interests that justify other rights such as freedom of religion and association. Is it a problem if free speech is justified by interests that are continuous with, or overlap with, interests that justify other rights? Pace the free speech skeptics, maybe not. So long as such claims deserve special recognition, and are worth distinguishing by name, this may be enough (Kendrick 2017: 101). Many of the views canvassed above share normative bases with other important rights. For example, Rawls is clear that he thinks all the basic liberties constitute

essential social conditions for the adequate development and full exercise of the two powers of moral personality over a complete life. (Rawls 2005: 293)

The debate, then, is whether such a shared basis is a theoretical virtue (or at least theoretically unproblematic) or whether it is a theoretical vice, as the skeptics avow.

As for the claim that free speech must be robust, protecting harmful speech, “it is not necessary for a free speech right to protect harmful speech in order for it to be called a free speech right” (Kendrick 2017: 102). We do not tend to think that religious liberty must protect harmful religious activities for it to count as a special right. So it would be strange to insist that the right to free speech must meet this burden to count as a special right. Most of the theorists mentioned above take themselves to be offering views that protect quite a lot of harmful speech. Yet we can question whether this feature is a necessary component of their views, or whether we could imagine variations without this result.

3. Justifying Speech Restrictions

When, and why, can restrictions on speech be justified? It is common in public debate on free speech to hear the provocative claim that free speech is absolute . But the plausibility of such a claim depends on what is exactly meant by it. If understood to mean that no communications between humans can ever be restricted, such a view is held by no one in the philosophical debate. When I threaten to kill you unless you hand me your money; when I offer to bribe the security guard to let me access the bank vault; when I disclose insider information that the company in which you’re heavily invested is about to go bust; when I defame you by falsely posting online that you’re a child abuser; when I endanger you by labeling a drug as safe despite its potentially fatal side-effects; when I reveal your whereabouts to assist a murderer intent on killing you—across all these cases, communications may be uncontroversially restricted. But there are different views as to why.

To help organize such views, consider a set of distinctions influentially defended by Schauer (from 1982 onward). The first category involves uncovered speech : speech that does not even presumptively fall within the scope of a principle of free expression. Many of the speech-acts just canvassed, such as the speech involved in making a threat or insider training, plausibly count as uncovered speech. As the U.S. Supreme Court has said of fighting words (e.g., insults calculated to provoke a street fight),

such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ( Chaplinsky v. New Hampshire 1942)

The general idea here is that some speech simply has negligible—and often no —value as free speech, in light of its utter disconnection from the values that justify free speech in the first place. (For discussion of so-called “low-value speech” in the U.S. context, see Sunstein 1989 and Lakier 2015.) Accordingly, when such low-value speech is harmful, it is particularly easy to justify its curtailment. Hence the Court’s view that “the prevention and punishment of [this speech] have never been thought to raise any Constitutional problem”. For legislation restricting such speech, the U.S. Supreme Court applies a “rational basis” test, which is very easy to meet, as it simply asks whether the law is rationally related to a legitimate state interest. (Note that it is widely held that it would still be impermissible to selectively ban low-value speech on a viewpoint-discriminatory basis—e.g., if a state only banned fighting words from left-wing activists while allowing them from right-wing activists.)

Schauer’s next category concerns speech that is covered but unprotected . This is speech that engages the values that underpin free speech; yet the countervailing harm of the speech justifies its restriction. In such cases, while there is real value in such expression as free speech, that value is outweighed by competing normative concerns (or even, as we will see below, on behalf of the very values that underpin free speech). In U.S. constitutional jurisprudence, this category encompasses those extremely rare cases in which restrictions on political speech pass the “strict scrutiny” test, whereby narrow restrictions on high-value speech can be justified due to the compelling state interests thereby served. Consider Holder v. Humanitarian Law Project 2010, in which the Court held that an NGO’s legal advice to a terrorist organization on how to pursue peaceful legal channels were legitimately criminalized under a counter-terrorism statute. While such speech had value as free speech (at least on one interpretation of this contested ruling), the imperative of counter-terrorism justified its restriction. (Arguably, commercial speech, while sometimes called low-value speech by scholars, falls into the covered but unprotected category. Under U.S. law, legislation restricting it receives “intermediate scrutiny” by courts—requiring restrictions to be narrowly drawn to advance a substantial government interest. Such a test suggests that commercial speech has bona fide free-speech value, making it harder to justify regulations on it than regulations on genuinely low-value speech like fighting words. It simply doesn’t have as much free-speech value as categories like political speech, religious speech, or press speech, all of which trigger the strict scrutiny test when restricted.)

As a philosophical matter, we can reasonably disagree about what speech qualifies as covered but unprotected (and need not treat the verdicts of the U.S. Supreme Court as philosophically decisive). For example, consider politically-inflected hate speech, which advances repugnant ideas about the inferior status of certain groups. One could concur that there is substantial free-speech value in such expression, just because it involves the sincere expression of views about central questions of politics and justice (however misguided the views doubtlessly are). Yet one could nevertheless hold that such speech should not be protected in virtue of the substantial harms to which it can lead. In such cases, the free-speech value is outweighed. Many scholars who defend the permissibility of legal restrictions on hate speech hold such a view (e.g., Parekh 2012; Waldron 2012). (More radically, one could hold that such speech’s value is corrupted by its evil, such that it qualifies as genuinely low-value; Howard 2019a.)

The final category of speech encompasses expression that is covered and protected . To declare that speech is protected just is to conclude that it is immune from restriction. A preponderance of human communications fall into this category. This does not mean that such speech can never be regulated ; content-neutral time, place, and manner regulations (e.g., prohibiting loud nighttime protests) can certainly be justified (G. Stone 1987). But such regulations must not be viewpoint discriminatory; they must apply even-handedly across all forms of protected speech.

Schauer’s taxonomy offers a useful organizing framework for how we should think about different forms of speech. Where does it leave the claim that free speech is absolute? The possibility of speech that is covered but unprotected suggests that free speech should sometimes be restricted on account of rival normative concerns. Of course, one could contend that such a category, while logically possible, is substantively an empty set; such a position would involve some kind of absoluteness about free speech (holding that where free-speech values are engaged by expression, no countervailing values can ever be weighty enough to override them). Such a position would be absolutist in a certain sense while granting the permissibility of restrictions on speech that do not engage the free-speech values. (For a recent critique of Schauer’s framework, arguing that governmental designation of some speech as low-value is incompatible with the very ideal of free speech, see Kramer 2021: 31.)

In what follows, this entry will focus on Schauer’s second category: speech that is covered by a free speech principle, but is nevertheless unprotected because of the harms it causes. How do we determine what speech falls into this category? How, in other words, do we determine the limits of free speech? Unsurprisingly, this is where most of the controversy lies.

Most legal systems that protect free speech recognize that the right has limits. Consider, for example, international human rights law, which emphatically protects the freedom of speech as a fundamental human right while also affirming specific restrictions on certain seriously harmful speech. Article 19 of the International Covenant of Civil and Political Rights declares that “[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds”—but then immediately notes that this right “carries with it special duties and responsibilities”. The subsequent ICCPR article proceeds to endorse legal restrictions on “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, as well as speech constituting “propaganda for war” (ICCPR). While such restrictions would plainly be struck down as unconstitutional affronts to free speech in the U.S., this more restrictive approach prevails in most liberal democracies’ treatment of harmful speech.

Set aside the legal issue for now. How should we think about how to determine the limits of the moral right free speech? Those seeking to justify limits on speech tend to appeal to one of two strategies (Howard and Simpson forthcoming). The first strategy appeals to the importance of balancing free speech against other moral values when they come into conflict. This strategy involves external limits on free speech. (The next strategy, discussed below, invokes free speech itself, or the values that justify it, as limit-setting rationales; it thus involves internal limits on free speech.)

A balancing approach recognizes a moral conflict between unfettered communication and external values. Consider again the case of hate speech, understood as expression that attacks members of socially vulnerable groups as inferior or dangerous. On all of the theories canvassed above, there are grounds for thinking that restrictions on hate speech are prima facie in violation of the moral right to free speech. Banning hate speech to prevent people from hearing ideas that might incline them to bigotry plainly seems to disrespect listener autonomy. Further, even when speakers are expressing prejudiced views, they are still engaging their autonomous faculties. Certainly, they are expressing views on questions of public political concern, even false ones. And as thinkers they are engaged in the communication of sincere testimony to others. On many of the leading theories, the values underpinning free speech seem to be militate against bans on hate speech.

Even so, other values matter. Consider, for example, the value of upholding the equal dignity of all citizens. A central insight of critical race theory is that public expressions of white supremacy, for example, attack and undermine that equal dignity (Matsuda, Lawrence, Delgado, & Crenshaw 1993). On Jeremy Waldron’s view (2012), hate speech is best understood as a form of group defamation, launching spurious attacks on others’ reputations and thereby undermining their standing as respected equals in their own community (relatedly, see Beauharnais v. Illinois 1952).

Countries that ban hate speech, accordingly, are plausibly understood not as opposed to free speech, but as recognizing the importance that it be balanced when conflicting with other values. Such balancing can be understood in different ways. In European human rights law, for example, the relevant idea is that the right to free speech is balanced against other rights ; the relevant task, accordingly, is to specify what counts as a proportionate balance between these rights (see Alexy 2003; J. Greene 2021).

For others, the very idea of balancing rights undermines their deontic character. This alternative framing holds that the balancing occurs before we specify what rights are; on this view, we balance interests against each other, and only once we’ve undertaken that balancing do we proceed to define what our rights protect. As Scanlon puts it,

The only balancing is balancing of interests. Rights are not balanced, but are defined, or redefined, in the light of the balance of interests and of empirical facts about how these interests can best be protected. (2008: 78)

This balancing need not come in the form of some crude consequentialism; otherwise it would be acceptable to limit the rights of the few to secure trivial benefits for the many. On a contractualist moral theory such as Scanlon’s, the test is to assess the strength of any given individual’s reason to engage in (or access) the speech, against the strength of any given individual’s reason to oppose it.

Note that those who engage in balancing need not give up on the idea of viewpoint neutrality; they can accept that, as a general principle, the state should not restrict speech on the grounds that it disapproves of its message and dislikes that others will hear it. The point, instead, is that this commitment is defeasible; it is possible to be overridden.

One final comment is apt. Those who are keen to balance free speech against other values tend to be motivated by the concern that speech can cause harm, either directly or indirectly (on this distinction, see Schauer 1993). But to justify restrictions on speech, it is not sufficient (and perhaps not even necessary) to show that such speech imposes or risks imposing harm. The crucial point is that the speech is wrongful (or, perhaps, wrongfully harmful or risky) , breaching a moral duty that speakers owe to others. Yet very few in the free speech literature think that the mere offensiveness of speech is sufficient to justify restrictions on it. Even Joel Feinberg, who thinks offensiveness can sometimes be grounds for restricting conduct, makes a sweeping exception for

[e]xpressions of opinion, especially about matters of public policy, but also about matters of empirical fact, and about historical, scientific, theological, philosophical, political, and moral questions. (1985: 44)

And in many cases, offensive speech may be actively salutary, as when racists are offended by defenses of racial equality (Waldron 1987). Accordingly, despite how large it looms in public debate, discussion of offensive speech will not play a major role in the discussion here.

We saw that one way to justify limits on free speech is to balance it against other values. On that approach, free speech is externally constrained. A second approach, in contrast, is internally constrained. On this approach, the very values that justify free speech themselves determine its own limits. This is a revisionist approach to free speech since, unlike orthodox thinking, it contends that a commitment to free speech values can counterintuitively support the restriction of speech—a surprising inversion of traditional thinking on the topic (see Howard and Simpson forthcoming). This move—justifying restrictions on speech by appealing to the values that underpin free speech—is now prevalent in the philosophical literature (for an overview, see Barendt 2005: 1ff).

Consider, for example, the claim that free speech is justified by concerns of listener autonomy. On such a view, as we saw above, autonomous citizens have interests in exposure to a wide range of viewpoints, so that they can decide for themselves what to believe. But many have pointed out that this is not autonomous citizens’ only interest; they also have interests in not getting murdered by those incited by incendiary speakers (Amdur 1980). Likewise, insofar as being targeted by hate speech undermines the exercise of one’s autonomous capacities, appeal to the underlying value of autonomy could well support restrictions on such speech (Brison 1998; see also Brink 2001). What’s more, if our interests as listeners in acquiring accurate information is undermined by fraudulent information, then restrictions on such information could well be compatible with our status as autonomous; this was one of the insights that led Scanlon to complicate his theory of free speech (1978).

Or consider the theory that free speech is justified because of its role in enabling autonomous speakers to express themselves. But as Japa Pallikkathayil has argued, some speech can intimidate its audiences into staying silent (as with some hate speech), out of fear for what will happen if they speak up (Pallikkathayil 2020). In principle, then, restrictions on hate speech may serve to support the value of speaker expression, rather than undermine it (see also Langton 2018; Maitra 2009; Maitra & McGowan 2007; and Matsuda 1989: 2337). Indeed, among the most prominent claims in feminist critiques of pornography is precisely that it silences women—not merely through its (perlocutionary) effects in inspiring rape, but more insidiously through its (illocutionary) effects in altering the force of the word “no” (see MacKinnon 1984; Langton 1993; and West 204 [2022]; McGowan 2003 and 2019; cf. Kramer 2021, pp. 160ff).

Now consider democracy theories. On the one hand, democracy theorists are adamant that citizens should be free to discuss any proposals, even the destruction of democracy itself (e.g., Meiklejohn 1948: 65–66). On the other hand, it isn’t obvious why citizens’ duties as democratic citizens could not set a limit to their democratic speech rights (Howard 2019a). The Nazi propagandist Goebbels is said to have remarked:

This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed. (as quoted in Fox & Nolte 1995: 1)

But it is not clear why this is necessarily so. Why should we insist on a conception of democracy that contains a self-destruct mechanism? Merely stipulating that democracy requires this is not enough (see A. Greene and Simpson 2017).

Finally, consider Shiffrin’s thinker-based theory. Shiffrin’s view is especially well-placed to explain why varieties of harmful communications are protected speech; what the theory values is the sincere transmission of veridical testimony, whereby speakers disclose what they genuinely believe to others, even if what they believe is wrongheaded and dangerous. Yet because the sincere testimony of thinkers is what qualifies some communication for protection, Shiffrin is adamant that lying falls outside the protective ambit of freedom of expression (2014) This, then, sets an internal limit on her own theory (even if she herself disfavors all lies’ outright prohibition for reasons of tolerance). The claim that lying falls outside the protective ambit of free speech is itself a recurrent suggestion in the literature (Strauss 1991: 355; Brown 2023). In an era of rampant disinformation, this internal limit is of substantial practical significance.

Suppose the moral right (or principle) of free speech is limited, as most think, such that not all communications fall within its protective ambit (either for external reasons, internal reasons, or both). Even so, it does not follow that laws banning such unprotected speech can be justified all-things-considered. Further moral tests must be passed before any particular policy restricting speech can be justified. This sub-section focuses on the requirement that speech restrictions be proportionate .

The idea that laws implicating fundamental rights must be proportionate is central in many jurisdictions’ constitutional law, as well as in the international law of human rights. As a representative example, consider the specification of proportionality offered by the Supreme Court of Canada:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question[…] Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance” ( R v. Oakes 1986).

It is this third element (often called “proportionality stricto sensu ”) on which we will concentrate here; this is the focused sense of proportionality that roughly tracks how the term is used in the philosophical literatures on defensive harm and war, as well as (with some relevant differences) criminal punishment. (The strict scrutiny and intermediate scrutiny tests of U.S. constitutional law are arguably variations of the proportionality test; but set aside this complication for now as it distracts from the core philosophical issues. For relevant legal discussion, see Tsesis 2020.)

Proportionality, in the strict sense, concerns the relation between the costs or harms imposed by some measure and the benefits that the measure is designed to secure. The organizing distinction in recent philosophical literature (albeit largely missing in the literature on free speech) is one between narrow proportionality and wide proportionality . While there are different ways to cut up the terrain between these terms, let us stipulatively define them as follows. An interference is narrowly proportionate just in case the intended target of the interference is liable to bear the costs of that interference. An interference is widely proportionate just in case the collateral costs that the interference unintentionally imposes on others can be justified. (This distinction largely follows the literature in just war theory and the ethics of defensive force; see McMahan 2009.) While the distinction is historically absent from free speech theory, it has powerful payoffs in helping to structure this chaotic debate (as argued in Howard 2019a).

So start with the idea that restrictions on communication must be narrowly proportionate . For a restriction to be narrowly proportionate, those whose communications are restricted must be liable to bear their costs, such that they are not wronged by their imposition. One standard way to be liable to bear certain costs is to have a moral duty to bear them (Tadros 2012). So, for example, if speakers have a moral duty to refrain from libel, hate speech, or some other form of harmful speech, they are liable to bear at least some costs involved in the enforcement of that duty. Those costs cannot be unlimited; a policy of executing hate speakers could not plausibly be justified. Typically, in both defensive and punitive contexts, wrongdoers’ liability is determined by their culpability, the severity of their wrong, or some combination of the two. While it is difficult to say in the abstract what the precise maximal cost ceiling is for any given restriction, as it depends hugely on the details, the point is simply that there is some ceiling above which a speech restriction (like any restriction) imposes unacceptably high costs, even on wrongdoers.

Second, for a speech restriction to be justified, we must also show that it would be widely proportionate . Suppose a speaker is liable to bear the costs of some policy restricting her communication, such that she is not wronged by its imposition. It may be that the collateral costs of such a policy would render it unacceptable. One set of costs is chilling effects , the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope” (Kendrick 2013: 1649). The core idea is that laws targeting unprotected, legitimately proscribed expression may nevertheless end up having a deleterious impact on protected expression. This is because laws are often vague, overbroad, and in any case are likely to be misapplied by fallible officials (Schauer 1978: 699).

Note that if a speech restriction produces chilling effects, it does not follow that the restriction should not exist at all. Rather, concern about chilling effects instead suggests that speech restrictions should be under-inclusive—restricting less speech than is actually harmful—in order to create “breathing space”, or “a buffer zone of strategic protection” (Schauer 1978: 710) for legitimate expression and so reduce unwanted self-censorship. For example, some have argued that even though speech can cause harm recklessly or negligently, we should insist on specific intent as the mens rea of speech crimes in order to reduce any chilling effects that could follow (Alexander 1995: 21–128; Schauer 1978: 707; cf. Kendrick 2013).

But chilling effects are not the only sort of collateral effects to which speech restrictions could lead. Earlier we noted the risk that states might abuse their censorial powers. This, too, could militate in favor of underinclusive speech restrictions. Or the implication could be more radical. Consider the problem that it is difficult to author restrictions on hate speech in a tightly specified way; the language involved is open-ended in a manner that enables states to exercise considerable judgment in deciding what speech-acts, in fact, count as violations (see Strossen 2018). Given the danger that the state will misuse or abuse these laws to punish legitimate speech, some might think this renders their enactment widely disproportionate. Indeed, even if the law were well-crafted and would be judiciously applied by current officials, the point is that those in the future may not be so trustworthy.

Those inclined to accept such a position might simply draw the conclusion that legislatures ought to refrain from enacting laws against hate speech. A more radical conclusion is that the legal right to free speech ought to be specified so that hate speech is constitutionally protected. In other words, we ought to give speakers a legal right to violate their moral duties, since enforcing those moral duties through law is simply too risky. By appealing to this logic, it is conceivable that the First Amendment position on hate speech could be justified all-things-considered—not because the underlying moral right to free speech protects hate speech, but because hate speech must be protected for instrumental reasons of preventing future abuses of power (Howard 2019a).

Suppose certain restrictions on harmful speech can be justified as proportionate, in both the narrow and wide senses. This is still not sufficient to justify them all-things-considered. Additionally, they must be justified as necessary . (Note that some conceptions of proportionality in human rights law encompass the necessity requirement, but this entry follows the prevailing philosophical convention by treating them as distinct.)

Why might restrictions on harmful speech be unnecessary? One of the standard claims in the free speech literature is that we should respond to harmful speech not by banning it, but by arguing back against it. Counter-speech—not censorship—is the appropriate solution. This line of reasoning is old. As John Milton put it in 1644: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” The insistence on counter-speech as the remedy for harmful speech is similarly found, as noted above, throughout chapter 2 of Mill’s On Liberty .

For many scholars, this line of reply is justified by the fact that they think the harmful speech in question is protected by the moral right to free speech. For such scholars, counter-speech is the right response because censorship is morally off the table. For other scholars, the recourse to counter-speech has a plausible distinct rationale (although it is seldom articulated): its possibility renders legal restrictions unnecessary. And because it is objectionable to use gratuitous coercion, legal restrictions are therefore impermissible (Howard 2019a). Such a view could plausibly justify Mill’s aforementioned analysis in the corn dealer example, whereby censorship is permissible but only when there’s no time for counter-speech—a view that is also endorsed by the U.S. Supreme Court in Brandenburg v. Ohio 395 U.S. 444 (1969).

Whether this argument succeeds depends upon a wide range of further assumptions—about the comparable effectiveness of counter-speech relative to law; about the burdens that counter-speech imposes on prospective counter-speakers. Supposing that the argument succeeds, it invites a range of further normative questions about the ethics of counter-speech. For example, it is important who has the duty to engage in counter-speech, who its intended audience is, and what specific forms the counter-speech ought to take—especially in order to maximize its persuasive effectiveness (Brettschneider 2012; Cepollaro, Lepoutre, & Simpson 2023; Howard 2021b; Lepoutre 2021; Badano & Nuti 2017). It is also important to ask questions about the moral limits of counter-speech. For example, insofar as publicly shaming wrongful speakers has become a prominent form of counter-speech, it is crucial to interrogate its permissibility (e.g., Billingham and Parr 2020).

This final section canvasses the young philosophical debate concerning freedom of speech on the internet. With some important exceptions (e.g., Barendt 2005: 451ff), this issue has only recently accelerated (for an excellent edited collection, see Brison & Gelber 2019). There are many normative questions to be asked about the moral rights and obligations of internet platforms. Here are three. First, do internet platforms have moral duties to respect the free speech of their users? Second, do internet platforms have moral duties to restrict (or at least refrain from amplifying) harmful speech posted by their users? And finally, if platforms do indeed have moral duties to restrict harmful speech, should those duties be legally enforced?

The reference to internet platforms , is a deliberate focus on large-scale social media platforms, through which people can discover and publicly share user-generated content. We set aside other entities such as search engines (Whitney & Simpson 2019), important though they are. That is simply because the central political controversies, on which philosophical input is most urgent, concern the large social-media platforms.

Consider the question of whether internet platforms have moral duties to respect the free speech of their users. One dominant view in the public discourse holds that the answer is no . On this view, platforms are private entities, and as such enjoy the prerogative to host whatever speech they like. This would arguably be a function of them having free speech rights themselves. Just as the free speech rights of the New York Times give it the authority to publish whatever op-eds it sees fit, the free speech rights of platforms give them the authority to exercise editorial or curatorial judgment about what speech to allow. On this view, if Facebook were to decide to become a Buddhist forum, amplifying the speech of Buddhist users and promoting Buddhist perspectives and ideas, and banning speech promoting other religions, it would be entirely within its moral (and thus proper legal) rights to do so. So, too, if it were to decide to become an atheist forum.

A radical alternative view holds that internet platforms constitute a public forum , a term of art from U.S. free speech jurisprudence used to designate spaces “designed for and dedicated to expressive activities” ( Southeastern Promotions Ltd., v. Conrad 1975). As Kramer has argued:

social-media platforms such as Facebook and Twitter and YouTube have become public fora. Although the companies that create and run those platforms are not morally obligated to sustain them in existence at all, the role of controlling a public forum morally obligates each such company to comply with the principle of freedom of expression while performing that role. No constraints that deviate from the kinds of neutrality required under that principle are morally legitimate. (Kramer 2021: 58–59)

On this demanding view, platforms’ duties to respect speech are (roughly) identical to the duties of states. Accordingly, if efforts by the state to restrict hate speech, pornography, and public health misinformation (for example) are objectionable affronts to free speech, so too are platforms’ content moderation rules for such content. A more moderate view does not hold that platforms are public forums as such, but holds that government channels or pages qualify as public forums (the claim at issue in Knight First Amendment Institute v. Trump (2019).)

Even if we deny that platforms constitute public forums, it is plausible that they engage in a governance function of some kind (Klonick 2018). As Jack Balkin has argued, the traditional model of free speech, which sees it as a relation between speakers and the state, is today plausibly supplanted by a triadic model, involving a more complex relation between speakers, governments, and intermediaries (2004, 2009, 2018, 2021). If platforms do indeed have some kind of governance function, it may well trigger responsibilities for transparency and accountability (as with new legislation such as the EU’s Digital Services Act and the UK’s Online Safety Act).

Second, consider the question of whether platforms have a duty to remove harmful content posted by users. Even those who regard them as public forums could agree that platforms may have a moral responsibility to remove illegal unprotected speech. Yet a dominant view in the public debate has historically defended platforms’ place as mere conduits for others’ speech. This is the current position under U.S. law (as with 47 U.S. Code §230), which broadly exempts platforms from liability for much illegal speech, such as defamation. On this view, we should view platforms as akin to bulletin boards: blame whoever posts wrongful content, but don’t hold the owner of the board responsible.

This view is under strain. Even under current U.S. law, platforms are liable for removing some content, such as child sexual abuse material and copyright infringements, suggesting that it is appropriate to demand some accountability for the wrongful content posted by others. An increasing body of philosophical work explores the idea that platforms are indeed morally responsible for removing extreme content. For example, some have argued that platforms have a special responsibility to prevent the radicalization that occurs on their networks, given the ways in which extreme content is amplified to susceptible users (Barnes 2022). Without engaging in moderation (i.e., removal) of harmful content, platforms are plausibly complicit with the wrongful harms perpetrated by users (Howard forthcoming).

Yet it remains an open question what a responsible content moderation policy ought to involve. Many are tempted by a juridical model, whereby platforms remove speech in accordance with clearly announced rules, with user appeals mechanisms in place for individual speech decisions to ensure they are correctly made (critiqued in Douek 2022b). Yet platforms have billions of users and remove millions of pieces of content per week. Accordingly, perfection is not possible. Moving quickly to remove harmful content during a crisis—e.g., Covid misinformation—will inevitably increase the number of false positives (i.e., legitimate speech taken down as collateral damage). It is plausible that the individualistic model of speech decisions adopted by courts is decidedly implausible to help us govern online content moderation; as noted in Douek 2021 and 2022a, what is needed is analysis of how the overall system should operate at scale, with a focus on achieving proportionality between benefits and costs. Alternatively, one might double down and insist that the juridical model is appropriate, given the normative significance of speech. And if it is infeasible for social-media companies to meet its demands given their size, then all the worse for social-media companies. On this view, it is they who must bend to meet the moral demands of free speech theory, not the other way around.

Substantial philosophical work needs to be done to deliver on this goal. The work is complicated by the fact that artificial intelligence (AI) is central to the processes of content moderation; human moderators, themselves subjected to terrible working conditions at long hours, work in conjunction with machine learning tools to identify and remove content that platforms have restricted. Yet AI systems notoriously are as biased as their training data. Further, their “black box” decisions are cryptic and cannot be easily understood. Given that countless speech decisions will necessarily be made without human involvement, it is right to ask whether it is reasonable to expect users to accept the deliverances of machines (e.g., see Vredenburgh 2022; Lazar forthcoming a). Note that machine intelligence is used not merely for content moderation, narrowly understood as the enforcement of rules about what speech is allowed. It is also deployed for the broader practice of content curation, determining what speech gets amplified — raising the question of what normative principles should govern such amplification; see Lazar forthcoming b).

Finally, there is the question of legal enforcement. Showing that platforms have the moral responsibility to engage in content moderation is necessary to justifying its codification into a legal responsibility. Yet it is not sufficient; one could accept that platforms have moral duties to moderate (some) harmful speech while also denying that those moral duties ought to be legally enforced. A strong, noninstrumental version of such a view would hold that while speakers have moral duties to refrain from wrongful speech, and platforms have duties not to platform or amplify it, the coercive enforcement of such duties would violate the moral right to freedom of expression. A more contingent, instrumental version of the view would hold that legal enforcement is not in principle impermissible; but in practice, it is simply too risky to grant the state the authority to enforce platforms’ and speakers’ moral duties, given the potential for abuse and overreach.

Liberals who champion the orthodox interpretation of the First Amendment, yet insist on robust content moderation, likely hold one or both of these views. Yet globally such views seem to be in the minority. Serious legislation is imminent that will subject social-media companies to burdensome regulation, in the form of such laws as the Digital Services Act in the European Union and the Online Safety Bill in the UK. Normatively evaluating such legislation is a pressing task. So, too, is the task of designing normative theories to guide the design of content moderation systems, and the wider governance of the digital public sphere. On both fronts, political philosophers should get back to work.

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Acknowledgments

I am grateful to the editors and anonymous referees of this Encyclopedia for helpful feedback. I am greatly indebted to Robert Mark Simpson for many incisive suggestions, which substantially improved the entry. This entry was written while on a fellowship funded by UK Research & Innovation (grant reference MR/V025600/1); I am thankful to UKRI for the support.

Copyright © 2024 by Jeffrey W. Howard < jeffrey . howard @ ucl . ac . uk >

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Table of Contents

Arguments for freedom: the many reasons why free speech is essential.

• David Hudson

“The matrix, the indispensable condition, of nearly every other freedom”— that’s how Justice Benjamin Cardozo referred to freedom of speech. 

This eminent Justice is far from alone in his assessment of the lofty perch that free speech holds in the United States of America. Others have called it our blueprint for personal liberty and the cornerstone of a free society. Without freedom of speech, individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint, or express their individuality and autonomy. 

The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” This freedom represents the essence of personal freedom and individual liberty. It remains vitally important, because freedom of speech is inextricably intertwined with freedom of thought. 

Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance.

“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end,” warned Justice Anthony Kennedy in Ashcroft v. Free Speech Coalition (2002). “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

There are numerous reasons why the First Amendment has a preferred position in our pantheon of constitutional values.  Here are six.

Self-governance and a check against governmental abuse

Free speech theorists and scholars have advanced a number of reasons why freedom of speech is important. Philosopher Alexander Meiklejohn famously offered that freedom of speech is essential for individuals to freely engage in debate so that they can make informed choices about self-government. Justice Louis Brandeis expressed this sentiment in his concurring opinion in  Whitney v. California (1927): “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

In other words, freedom of speech is important for the proper functioning of a constitutional democracy. Meiklejohn advocated these ideas in his seminal 1948 work, “ Free Speech and Its Relation to Self-Government .” Closely related to this is the idea that freedom of speech serves as a check against abuse by government officials. Professor Vincent Blasi referred to this as “the checking value” of free speech. 

Liberty and self-fulfillment

The self-governance rationale is only one of many reasons why freedom of speech is considered so important. Another reason is that freedom of speech is key to individual fulfillment. Some refer to this as the “liberty theory” of the First Amendment.

Free-speech theorist C. Edwin Baker writes that “speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Justice Thurgood Marshall eloquently advanced the individual fulfillment theory of freedom of speech in his concurring opinion in the prisoner rights case  Procunier v. Martinez (1974) when he wrote: “The First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”

The search for truth and the ‘marketplace of ideas’ metaphor

Still another reason for elevating freedom of speech to a prominent place in our constitutional values is that it ensures a search for truth. 

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Justice Oliver Wendell Holmes expressed this idea in his “Great Dissent” in  Abrams v. United States (1919) when he wrote that “the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This language from Holmes led to one of the most pervasive metaphors in First Amendment jurisprudence—that of the “marketplace of ideas.” 

This concept did not originate with Holmes, as John Milton in the 17th century and John Stuart Mill in the 19th century advanced the idea that speech is essential in the search for truth in their respective works, “Areopagitica” (1644) and “On Liberty” (1859). Milton famously wrote: “Let [Truth] and Falsehood grapple, whoever knew Truth put to the worse, in a free and open encounter?” For his part, Mill warned of the “peculiar evil of silencing the expression of an opinion” explaining that “[i]f the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” 

Informational theory

The marketplace metaphor is helpful but incomplete. Critics point out that over the course of history, truth may not always prevail over false ideas. For example, Mill warned that truth sometimes doesn’t triumph over “persecution.” Furthermore, more powerful individuals may have greater access to the marketplace and devalue the contributions of others. Another critique comes from those who advocate the informational theory of free speech. 

Coronavirus and the failure of the 'Marketplace of Ideas'

“If finding objective truth were the only value of freedom of expression, there would be little value to studying history,”  explains Greg Lukianoff of FIRE . “ Most of human thought in history has been mistaken about its assumptions and beliefs about the world and each other; nevertheless, understanding things like superstitions, folk medicine, and apocryphal family histories has significance and value.” 

Under this theory, there is great value in learning and appreciating what people believe and how they process information. Lukianoff calls the metaphor for the informational theory of free speech “the lab in the looking glass.” The ultimate goal is “to know as much about us and our world as we can,” because it is vitally “important to know what people really believe, especially when the belief is perplexing or troubling.”

Safety valve theory

Another reason why freedom of speech is important relates to what has been termed the “safety valve” theory. This perspective advances the idea that it is good to allow individuals to express themselves fully and blow off steam.

If individuals are deprived of the ability to express themselves, they may undertake violent means as a way to draw attention to their causes or protests. Justice Brandeis advanced the safety valve theory of free speech in his concurring opinion in Whitney v. California (1927) when he wrote:

Those who won our independence believed . . . that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.

Tolerance theory

Free speech has also been construed to promote the virtue of tolerance: If we tolerate a wide range of speech and ideas, this will promote greater acceptance, self-restraint, and a diversity of ideas. 

Lee Bollinger advanced this theory in his 1986 work “The Tolerant Society.” This theory helps explain why we should tolerate even extremist speech. As Justice Holmes wrote in his dissent in  United States v. Schwimmer (1929), freedom of speech means “freedom for the thought that we hate.” This means that we often must tolerate extremist speech. As Chief Justice John G. Roberts, Jr. wrote in  Snyder v. Phelps (2011), we don’t punish the extremist speaker; instead “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Freedom of speech holds a special place in American law and society for many good reasons.

As Rodney Smolla writes in “Free Speech in an Open Society,” “[t]here is no logical reason . . . why the preferred position of freedom of speech might not be buttressed by multiple rationales.” Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance; it leads to a search for truth; it helps people express their individuality; and it promotes a tolerant society open to different viewpoints. 

In sum, it captures the essence of a free and open society.

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Why Freedom of Speech is Important

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Published: Sep 7, 2023

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Introduction, protection of democracy, promotion of civic engagement, protection of human rights, promotion of social justice.

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Freedom of speech should not be restricted lightly

The david miller and kathleen stock cases underline the growing threat to human rights, say alison assiter and miriam david.

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Although debates about freedom of speech are not new, the form they take now seems to be more vindictive than hitherto.

Two recent case cases illustrate the point. Earlier this month, it was announced that the sociology professor David Miller had been sacked by the University of Bristol . The official reason was that his lectures about Israel, Jews and Zionism “did not meet the standards of behaviour we expect from our staff”.

His disciplinary hearing included a third-party investigation by an unnamed Queen’s Counsel who found that Miller’s comments “did not constitute unlawful speech”, but he was sacked anyway because of some unwritten rule about his “duty of care to his students”.

In the same week, students at the University of Sussex demanded the sacking of feminist professor of philosophy Kathleen Stock because her views about women are allegedly transphobic. The university’s vice-chancellor, Adam Tickell, supported her right to free speech over women’s rights versus “trans-rights” or gender identity. However, the local University and College Union branch was subsequently more equivocal, insisting that it was against calls “for any worker to be summarily sacked” but also calling for an investigation into “institutional transphobia” – prompting Stock to claim that it had “ effectively ended” her career at Sussex.

It is important to set these events in context. The right to freedom of expression, and the concept of human rights in general, is under attack. Right-wing populists such as Jair Bolsonaro, Donald Trump, Narendra Modi and Victor Orbán have found common cause with religious conservatives to deride the notion of fundamental individual rights. Yet, rather than defend them, many critics on the Left also deride rights as Enlightenment-inspired, Eurocentric figleaves for racism, sexism and imperialist apologism.

No doubt both sides of the arguments in both the Miller and Stock cases would claim to be defending human rights. However, the issue at Bristol is that an extreme action – the sacking of a prominent academic – was taken in a context where the “crime” is unclear.

Hate speech is recognised (and outlawed) in English law, but the concept is also commonly used in a non-legal context to designate any speech that is degrading, insulting, defamatory, negatively stereotyping or liable to incite hatred or violence against any group of people by virtue of their race, religion, nationality, sexual orientation or disability, for example. Both Miller and Stock engaged in such speech, their opponents allege.

The expression “hate speech” was coined by a group of US legal scholars in the 1980s. They noted that different legal systems tackled harmful racial discrimination variously. When Mari Matsuda used the term in 1989 , her central purpose was to highlight how the US legal system failed victims of harmful racist speech by providing them with inadequate means of seeking redress, civil or criminal. She cited several legal cases and examples not associated with actual legal proceedings and not easily actionable under the existing laws.

The concept of hate speech has been taken up by a range of people on the Left to condemn people they believe are misogynistic, racist or xenophobic and who, therefore, violate ideals of respect and tolerance. But it is also used by evangelicals to critique liberals who they regard as attacking their conservative beliefs.

Hence, the philosopher Caleb Young suggests that “hate speech” is too broad a term to be usefully analysed as a single category. It includes many kinds of speech acts, each of which involves very different free speech interests that may cause different kinds of harm. Young distinguishes four main categories of “hate speech”. Miller’s pronouncements seem to fall into his concept of “organised political advocacy for exclusionary and/or eliminationist policies”, while Stock’s seems to fall into “targeted vilification”. But neither are illegal.

Sacking Miller for making legal pronouncements risks eroding the human right to free speech. It also risks disrupting the process that underpins that Right’s rationale: allowing ideas to flourish and deriving truth, autonomy and justice to emerge from the healthy debate that ensues.

Regulating legal “hate speech” could also be regarded as damaging to democracy, especially if even universities shy away from such debate. According to free speech advocates, students ought to be encouraged instead to debate opinions with which they disagree. This is precisely what Stock’s defenders have argued, and it is hard to disagree.

In Miller’s case, although we are not privy to the exact statements considered by Bristol, there seems at least to be some controversy over what was said. Miller has claimed that he made factual claims about pro-Israel groups in the UK, which were misinterpreted as conspiracy theories about Israel and Jews and therefore mislabelled as antisemitism.

While we disagree strongly with many statements made by Miller, and particularly object to what we understand to be his didacticism, we believe that sacking is too extreme a punishment given the ambiguities surrounding what he actually intended to say and surrounding what counts as hate speech.

We sympathise with the students’ concerns, especially with regard to being able to express their disagreement with him. But we believe that these could all have been dealt with by less stringent and irrevocable a measure.

If rights and democracy are to survive the attacks on them, we must only curtail freedom of speech when its hateful intentions are unequivocal and codified in law.

Alison Assiter is professor of feminist theory at the University of the West of England and author of A New Theory of Human Rights: New Materialism and Zoroastrianism (Rowman & Littlefield, 2021). Miriam David is professor emerita of sociology of education at the UCL Institute of Education.

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The first amendment, schenck v. united states: defining the limits of free speech.

November 2, 2015 | by Joshua Waimberg

Note:  Landmark Cases , a C-SPAN series on historic Supreme Court decisions—produced in cooperation with the National Constitution Center—continues on Monday, Nov. 2 at   9pm ET. This week’s show features  Schenck v. United States .

In a case that would define the limits of the First Amendment’s right to free speech , the Supreme Court decided the early 20 th -century case of Schenck v. United States .

The case began, as many do, with an act of Congress. Shortly after the United States entered into World War I, Congress passed the Espionage Act of 1917. It was passed with the goals of prohibiting interference with military operations or recruitment, preventing insubordination in the military, and preventing the support of hostile enemies during wartime.

At the time, Charles Schenck was an important Philadelphia socialist. He was the general secretary of the Socialist Party of America, and was opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section One of the 13 th Amendment , which outlawed slavery and involuntary servitude. Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet’s other side, titled “Assert Your Rights,” told conscripts that, “[i]f you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and Elizabeth Baer, another member of the Socialist Party who was also charged, were both convicted following a jury trial and sentenced to six months in prison.

Schenck and Baer appealed their convictions to the Supreme Court. They argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the First Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the First Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s First Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, even though the Act only applied to successful efforts to obstruct the draft, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

When it came to the Act’s alleged violation of the First Amendment, the Court found that context was the most important factor. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech. Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

It was only a year later that Holmes attempted to redefine the standard. In the 1919 case of Abrams v. United States , the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio , a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

The Espionage Act of 1917 lives on as well. Since the decision in Schenck v. United States , those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Chelsea Manning and Edward Snowden have also been charged under the Act.

Joshua Waimberg is a legal fellow at the National Constitution Center.

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Chapter 6: The Right to Freedom of Speech

The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Free speech is our most fundamental—and our most contested—right. It is an essential freedom because it is how we protect all of our other rights and liberties. If we could not speak openly about the policies and actions of government, then we would have no effective way to participate in the democratic process or protest when we believed governmental behavior threatened our security or our freedom. Although Americans agree that free speech is central to democratic government, we disagree sharply about what we mean by speech and about where the right begins and ends. Speech clearly includes words, but does it also include conduct or symbols? Certainly, we have the right to criticize the government, but can we also advocate its overthrow? Does the right to free speech allow us to incite hate or use foul language in public?

The framers of the Bill of Rights understood the importance of free expression and protected it under the First Amendment: “Congress shall make no law. . . abridging the freedom of speech.” Both English history and their own colonial past had taught them to value this right, but their definition of free speech was much more limited than ours. Less than a decade after the amendment’s ratification, Congress passed the Sedition Act of 1798, making it a crime to criticize the government. Many citizens believed government could forbid speech that threatened public order, as witnessed by numerous early nineteenth-century laws restricting speech against slavery. During the Civil War, thousands of antiwar protestors were arrested on the theory that the First Amendment did not protect disloyal speech. Labor unrest in the 1800s and 1890s brought similar restraints on the right of politically unpopular groups, such as socialists, to criticize government’s failure to protect working people from the ills of industrialization and economic depression.

Freedom of speech did not become a subject of important court cases until the twentieth century when the Supreme Court announced one of the most famous principles in constitutional law, the clear and present danger test. The test was straightforward: government could not restrict speech unless it posed a known, immediate threat to public safety. The standard sought to balance the need for order with the right to speak freely. At its heart was the question of proximity, or closeness, and degree. If speech brought about an action that was dangerous under the immediate circumstances, such as falsely yelling “fire” in a crowded theater, then it did not enjoy First Amendment protection. With this case, Schenck v. United States (1919), the Court began a decades-long process of seeking the right balance between free speech and public safety.

The balance, at first, was almost always on the side of order and security. Another case decided in 1919, Debs v. United States , illustrates how restrictive the test could be. Eugene Debs was a labor leader from Indiana who had run for President four times as the candidate of the Socialist Party of America, once polling more than one million votes. At a June 1918 rally in Chicago, while U.S. troops were fighting in World War I, he told the working-class crowd, “You need to know you are fit for something better than slavery and cannon fodder.”

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

He was sentenced under an existing federal statute to twenty years in prison for inciting disloyalty and obstruction of military recruitment, which the Supreme Court upheld.

For the next five decades, the Court wrestled with the right balance between speech and order. Much of what defined freedom of speech emerged from challenges to the government’s ability to regulate or punish political protest. Each case brought a new set of circumstances that allowed the justices an opportunity to modify or extend the clear and present danger test. Many decisions recognized the abstract right of individuals to speak freely, but each one hedged this right in important ways. Always in the background were conditions that pointed to disorder, dissension, and danger—the Great Depression, World War II, and the Cold War, among them—so the justices were cautious in expanding a right that would expose America to greater threats. These cases, however, gradually introduced a new perspective on the value of free speech in a democracy, namely, the belief that truth is best reached by the free trade in ideas.

The belief that society is best served by a marketplace of ideas open to all opinions, no matter how radical, ultimately prevailed. In 1927, the Court had endorsed what came to be called the bad tendency test: if officials believed speech was likely to lead to a bad result, such as urging people to commit a violent act, it was not protected under the First Amendment even if no violence occurred. By 1969, however, similar facts produced a different outcome. Ku Klux Klan members in Ohio invited a television station to film their rally. Waving firearms, they shouted racist and anti-Semitic slurs and threatened to march on Congress before their leader was arrested and later convicted under a state law banning speech that had a tendency to incite violence. The Supreme Court overturned his conviction in Brandenburg v. Ohio and established the rule still in effect today: the First Amendment protects the right to advocate the use of force or violence, but it does not safeguard speech likely to incite or produce an immediate unlawful act. The Brandenburg test has allowed Nazis to march, Klan members to hold rallies, and other extremist groups to promote views far outside the mainstream of public opinion. With few exceptions—fighting words and obscenity, for example—government today cannot regulate the content of speech.

Even as society was coming to accept a wide range of political ideas, opposition to an unpopular war raised other questions about the limits and forms of free speech. By the mid- to late 1960s, the Vietnam War divided Americans. Although many citizens supported the use of U.S. troops to stop communism in Asia, a growing minority, including many draft-age young people, took to the streets to oppose the war. The protestors did not limit their efforts to antiwar speeches; they also wore shirts with obscene slogans, burned draft cards, and desecrated American flags. Using these symbols to protest, they argued, was a form of free speech. Soon, the Supreme Court faced the question squarely in a case involving a youthful protestor from the nation’s heartland: is symbolic speech—messages using symbols or signs, not words—protected by the First Amendment?

The first large-scale American demonstration against the Vietnam War occurred in November 1965 when more than 25,000 protestors converged on the nation’s capital. Fifty Iowans made the long bus ride, and on the way home they decided to make their opposition known locally by wearing black armbands to work and school. One member of the peace contingent was Lorena Tinker, the wife of a Des Moines Methodist minister and mother of five children. Mary Beth Tinker, a thirteen-year-old eighth grader, followed her mother’s suggestion and became one of a handful of local public school students who wore this symbol of protest to school. This act placed her in the middle of a national controversy about student rights and freedom of expression.

In many ways, Mary Beth was a normal eighth grader. She was a good student who enjoyed singing, spending time with her friends, and taking part in church activities. What made her different was a commitment to social justice, a passion encouraged by her parents, both of whom were known for their activism. Her parents wanted their children to share their moral and social values, and Mary Beth responded eagerly to their invitation to participate with them. By the time she became a teenager, she already had attended her first protest, accompanying her father to a rally about fair housing.

Mary Beth Tinker, her brother, John, and a handful of Des Moines students planned their demonstration for December 16, 1965. The students’ aim was not to protest the war but to mourn its casualties, Vietnamese and American, and to show support for proposed peace talks. School officials, however, promised to suspend anyone who came to school wearing the armbands, and the school principal suspended Mary Beth and sent her home. She was one of five students suspended that day for wearing the offending cloth. Significantly, the school ban applied only to armbands, in other words, to students who opposed the Vietnam War; a number of students that day wore an array of other symbols, including the Iron Cross, a Nazi medal.

When the school board upheld the suspensions, the Tinkers persuaded the Iowa Civil Liberties Union to take the case to federal court. Two lower federal courts agreed with the school’s action, rebuffing the argument that the policy violated the First Amendment guarantee of free speech. The Supreme Court decided otherwise. In its 7-to-2 decision, announced in February 1969, the justices held that the wearing of armbands is a symbolic act akin to “pure speech” and protected by the right to free expression. The protesting students posed no threat to the order required for effective instruction, nor did the wearing of armbands interfere with the school’s educational mission. In this instance, the balance between order and liberty was weighted on the side of the First Amendment. Students and teachers, the Court concluded, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Symbolic speech has been the focus of some of our greatest constitutional drama. Words may be powerful and provocative, but symbols are often more inflammatory because they are visual and evoke an emotional response. We live in an age when we use pictures and symbols to convey important messages, whether in politics or the marketplace. For these reasons, the Supreme Court’s recognition of symbolic speech as a right protected by the First Amendment has been a significant development. Twenty-five years after Mary Beth Tinker put on her armband in remembrance of the war dead, Life magazine featured a handful of civil liberties cases to celebrate the bicentennial of the Bill of Rights. Mary Beth’s case was included, even though the rights of students remained, and still are, more limited than those of adult citizens. But her actions as an eighth grader expanded our conception of constitutionally protected speech to include the symbols we use to express our convictions.

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

More than most other recent decisions, cases involving symbolic speech have revealed how contentious the right of free speech remains in our society. In 1989, the Supreme Court ruled that the First Amendment protected individuals who burned the American flag in protest. This decision was highly controversial, and it has resulted in numerous attempts to amend the Constitution to protect the flag and, in effect, limit speech in this circumstance. The outcome of this effort is uncertain, but the debate raises important questions: What role does this right play in our democracy? How does it contribute to our liberty as Americans?

The right to speak freely, without restraint, is essential to democratic government because it helps us develop better laws and policies through challenge, rebuttal, and debate. When we all have the ability to speak in the public forum, offensive opinions can be combated with an opposing argument, a more inclusive approach, a more effective idea. We tolerate offensive speech and protect the right to speak even for people who would deny it to us because we believe that exposing their thoughts and opinions to open debate will result in the discovery of truth. This principle is an old one in Western thought. U.S. Supreme Court Justice Oliver Wendell Holmes’s dissent in Abrams v. United States , a 1919 case suppressing free speech, is a classic statement of this view: “The best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the public’s] wishes safely can be carried out.”

Governmental actions to deny differing points of view, even distasteful or unpopular opinions, rob us of the range of ideas that might serve the interests of society more effectively. In a case decided almost a decade before Tinker v. Des Moines , the Supreme Court found this rationale especially applicable to the classroom. “The Nation’s future,” the justices wrote, “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues.” As a nation, we are willing to live with the often bitter conflict over ideas because we believe it will lead to truth and to improved lives for all citizens. We recognize that freedom of speech is the first freedom of democracy, as the English poet John Milton argued during his own seventeenth-century struggle to gain this right: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The ability to speak freely allows us to pursue truth, to challenge falsehoods, to correct mistakes—all are necessary for a healthy society.

Free speech also reflects a commitment to individual freedom and autonomy, the right to decide for ourselves and to pursue our own destiny. Throughout our history, we have been so committed to individual choice that many foreign observers believe it is our most characteristic trait. We see it reflected daily in everything from advertising slogans—“Have It Your Way”— to fashion statements, but fail to recognize how closely freedom is tied to the right to speak freely. Free speech guarantees us an individual voice, no matter how far removed our opinions and beliefs are from mainstream society. With this voice we are free to contribute as individuals to the marketplace of ideas or a marketplace of goods, as well as to decide how and under what circumstances we will join with others to decide social and governmental policies.

A commitment to free speech, of course, will not resolve all conflict, not if our history is any guide. The debate is most contentious during times of war or other moments when national security is at stake. Even then—perhaps especially then—we will continue to fight over words and symbols because they express our deepest hopes and our most worrisome fears. This contest over what speech is acceptable and what is not has been a constant theme of our past. Rarely do these struggles produce a neat consensus. More often, intemperate rhetoric and bitter division have been their legacy, and this angry clamor is one of the basic noises of our history. What makes the struggle to protect free speech worthwhile is its ability to serve as a lever for change. When we practice our right to speak openly, we are defining the contours of our democracy. It is messy work, but through it, we keep the Constitution alive and, with it, our dreams of a just society.

“Free Trade in Ideas”

Jacob Abrams was a Russian immigrant and anarchist convicted of violating the Sedition Act of 1918, which made it a crime to advocate anything that would impede the war effort during World War I. In 1917 Justice Oliver Wendell Holmes, Jr., had written the Court’s opinion in Schenck v. United States , upholding similar convictions because Congress had a right to regulate speech that posed a “clear and present danger” to public safety. But by the time Abrams’s appeal reached the Court in 1919, Holmes had modified his views. Disturbed by anti-radical hysteria, he dissented from the majority’s decision upholding Abrams’s conviction in Abrams v. United States . His eloquent discussion of the connection between freedom of speech and the search for truth soon became the standard used by the Supreme Court to judge free speech cases until Brandenberg v. Ohio in 1972. The First Amendment, Holmes reasoned, protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so . . .

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

“Malicious Words” versus “Free Communication”

In response to fears about imminent wars with France in 1798, the Federalist-controlled Congress passed a series of four acts known collectively as the Alien and Sedition Acts. Section 2 of the Sedition Act made it a crime to make defamatory statements about the government or President. (Sedition is an action inciting resistance to lawful authority and tending to lead to the overthrow of the government.) The act was designed to suppress political opposition. Its passage by Congress reveals how limited the definition of the right of free speech was for some Americans only a few years after the ratification of the First Amendment.

Sec. 2 . . . That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United Sates, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

James Madison, congressman from Virginia, and Thomas Jefferson, the sitting Vice President, secretly drafted resolutions protesting the Sedition Act as unconstitutional. The Virginia and Kentucky legislatures passed these resolutions in 1798. Both resolutions especially pointed to the act’s violation of First Amendment protections, as seen in the Virginia Resolution here.

Resolved, . . . That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

The Sedition Act expired in 1801 but not until a number of the Federalists’ opponents, including Congressman Matthew Lyon of Vermont, had been convicted of violating the law. Today, historians consider the Sedition Act to have been a gross misuse of government power. In 1798, the Kentucky Resolutions focused on the rights of states to determine the limits of free speech.

Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.

Related Resources

• Timeline: First Amendment - Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech

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Head-To-Head: Should there be limits on freedom of speech?

By Comment Editor | Apr 3 2017

“Supporting limits to free speech in no way means you are anti-debate.”

  “How different, in terms of consequences, are the actions we conduct to the words we say?”

“Death threats, bomb threats and relentless online abuse that leads some to suicide are wildly hard to defend in the name of free speech.”

“After all, freedom of speech does not mean speech free from criticism or rebuttal”

“In truth, both sides want restriction on what opinions can be spoken”

“Our universities, and society at large, could learn a lot from examining Hegelian Dialectics”

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Freedom of Speech

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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The myth of the free speech crisis

How overblown fears of censorship have normalised hate speech and silenced minorities. By Nesrine Malik

W hen I started writing a column in the Guardian, I would engage with the commenters who made valid points and urge those whose response was getting lost in rage to re-read the piece and return. Comments were open for 72 hours. Coming up for air at the end of a thread felt like mooring a ship after a few days on choppy waters, like an achievement, something that I and the readers had gone through together. We had discussed sensitive, complicated ideas about politics, race, gender and sexuality and, at the end, via a rolling conversation, we had got somewhere.

In the decade since, the tenor of those comments became so personalised and abusive that the ship often drowned before making it to shore – the moderators would simply shut the thread down. When it first started happening, I took it as a personal failure – perhaps I had not struck the right tone or not sufficiently hedged all my points, provoking readers into thinking I was being dishonest or incendiary. In time, it dawned on me that my writing was the same. It was the commenters who had changed. It was becoming harder to discuss almost anything without a virtual snarl in response. And it was becoming harder to do so if one were not white or male.

As a result, the Guardian overhauled its policy and decided that it would not open comment threads on pieces that were certain to derail. The moderators had a duty of care to the writers, some of whom struggled with the abuse, and a duty of care to new writers who might succumb to a chilling effect if they knew that to embark on a journalism career nowadays comes inevitably with no protection from online thuggery. Alongside these moral concerns there were also practical, commercial ones. There were simply not enough resources to manage all the open threads at the same time with the increased level of attention that was now required.

In the past 10 years, many platforms in the press and social media have had to grapple with the challenges of managing users with increasingly sharp and offensive tones, while maintaining enough space for expression, feedback and interaction. Speech has never been more free or less intermediated. Anyone with internet access can create a profile and write, tweet, blog or comment, with little vetting and no hurdle of technological skill. But the targets of this growth in the means of expression have been primarily women, minorities and LGBTQ+ people.

A 2017 Pew Research Center survey revealed that a “wide cross-section” of Americans experience online abuse, but that the majority was directed towards minorities, with a quarter of black Americans saying they have been attacked online due to race or ethnicity. Ten per cent of Hispanics and 3% of whites reported the same. The picture is not much different in the UK. A 2017 Amnesty report analysed tweets sent to 177 female British MPs. The 20 of them who were from a black and ethnic minority background received almost half the total number of abusive tweets.

The vast majority of this abuse goes unpunished. And yet it is somehow conventional wisdom that free speech is under assault, that university campuses have succumbed to an epidemic of no-platforming, that social media mobs are ready to raise their pitchforks at the most innocent slip of the tongue or joke, and that Enlightenment values that protected the right to free expression and individual liberty are under threat. The cause of this, it is claimed, is a liberal totalitarianism that is attributable (somehow) simultaneously to intolerance and thin skin. The impulse is allegedly at once both fascist in its brutal inclinations to silence the individual, and protective of the weak, easily wounded and coddled.

This is the myth of the free speech crisis. It is an extension of the political-correctness myth , but is a recent mutation more specifically linked to efforts or impulses to normalise hate speech or shut down legitimate responses to it. The purpose of the myth is not to secure freedom of speech – that is, the right to express one’s opinions without censorship, restraint or legal penalty. The purpose is to secure the licence to speak with impunity; not freedom of expression, but rather freedom from the consequences of that expression.

The myth has two components: the first is that all speech should be free; the second is that freedom of speech means freedom from objection.

The first part of the myth is one of the more challenging to push back against, because instinctively it feels wrong to do so. It seems a worthy cause to demand more political correctness, politeness and good manners in language convention as a bulwark against society’s drift into marginalising groups with less capital, or to argue for a fuller definition of female emancipation. These are good things, even if you disagree with how they are to be achieved. But to ask that we have less freedom of speech – to be unbothered when people with views you disagree with are silenced or banned – smacks of illiberalism. It just doesn’t sit well. And it’s hard to argue for less freedom in a society in which you live, because surely limiting rights of expression will catch up with you at some point. Will it not be you one day, on the wrong side of free speech?

There is a kernel of something that makes all myths stick – something that speaks to a sense of justice, liberty, due process and openness and allows those myths to be cynically manipulated to appeal to the good and well-intentioned. But challenging the myth of a free speech crisis does not mean enabling the state to police and censor even further. Instead, it is arguing that there is no crisis. If anything, speech has never been more free and unregulated. The purpose of the free-speech-crisis myth is to guilt people into giving up their right of response to attacks, and to destigmatise racism and prejudice. It aims to blackmail good people into ceding space to bad ideas, even though they have a legitimate right to refuse. And it is a myth that demands, in turn, its own silencing and undermining of individual freedom. To accept the free-speech-crisis myth is to give up your own right to turn off the comments.

A t the same time that new platforms were proliferating on the internet, a rightwing counter-push was also taking place online. It claimed that all speech must be allowed without consequence or moderation, and that liberals were assaulting the premise of free speech. I began to notice it around the late 2000s, alongside the fashionable atheism that sprang up after the publication of Richard Dawkins’s The God Delusion . These new atheists were the first users I spotted using argumentative technicalities (eg “Islam is not a race”) to hide rank prejudice and Islamophobia. If the Guardian published a column of mine but did not open the comment thread, readers would find me on social media and cry censorship, then unleash their invective there instead.

As platforms multiplied, there were more and more ways for me to receive feedback from readers – I could be sworn at and told to go back to where I came from via at least three mediums. Or I could just read about how I should go back to where I came from in the pages of print publications, or on any number of websites. The comment thread seemed redundant. The whole internet was now a comment thread. As a result, mainstream media establishments began to struggle with this glut of opinion, failing to curate the public discussion by giving into false equivalence. Now every opinion must have a counter-opinion.

I began to see it in my own media engagements. I would be called upon by more neutral outlets, such as the BBC, to discuss increasingly more absurd arguments with other journalists or political activists with extreme views. Conversations around race, immigration, Islam and climate change became increasingly binary and polarised even when there were no binaries to be contemplated. Climate change deniers were allowed to broadcast falsehoods about a reversal in climate change. Racial minorities were called upon to counter thinly veiled racist or xenophobic views. I found myself, along with other journalists, regularly ambushed. I appeared on BBC’s Newsnight to discuss an incident in which a far-right racist had mounted a mosque pavement with his car and killed one of the congregation, and I tried to make the point that there was insufficient focus on a growing far-right terror threat. The presenter then asked me: “Have you had abuse? Give us an example.” This became a frequent line of inquiry – the personalisation and provocation of personal debate – when what was needed was analysis.

It became common for me and like-minded colleagues to ask – when invited on to TV or radio to discuss topics such as immigration or Islamophobia – who was appearing on the other side. One British Asian writer was invited on to the BBC to discuss populist rage. When he learned that he would be debating Melanie Phillips – a woman who has described immigrants as “convulsing Europe” and “refusing to assimilate” – he refused to take part, because he did not believe the topic warranted such a polarised set-up. The editor said: “This will be good for your book. Surely you want to sell more copies?” The writer replied that if he never sold another book in his life as a result of refusing to debate with Melanie Phillips, he could live with that. This was now the discourse: presenting bigotry and then the defence of bigotry as a “debate” from which everyone can benefit, like a boxing match where even the loser is paid, along with the promoters, coaches and everyone else behind arranging the fight. The writer Reni Eddo-Lodge has called it “performing rage”.

Views previously consigned to the political fringes made their way into the mainstream via social and traditional media organisations that previously would never have contemplated their airing. The expansion of media outlets meant that it was not only marginalised voices that secured access to the public, but also those with more extreme views.

This inevitably expanded what was considered acceptable speech. The Overton window – the range of ideas deemed to be acceptable by the public – shifted as more views made their way from the peripheries to the centre of the conversation. Any objection to the airing of those views would be considered an attempt to curtail freedom of speech. Whenever I attempted to push back in my writing against what amounted to incitement against racial or religious minorities, my opponents fixated on the free speech argument, rather than the harmful ramifications of hate speech.

I n early 2018, four extreme-right figures were turned away at the UK border. Their presence was deemed “not conducive to the public good”. When I wrote in defence of the Home Office’s position, my email and social media were flooded with abuse for days. Rightwing media blogs and some mainstream publications published pieces saying my position was an illiberal misunderstanding of free speech. No one discussed the people who were banned, their neo-Nazi views, or the risk of hate speech or even violence had they been let in.

What has increased is not intolerance of speech; there is simply more speech. And because that new influx was from the extremes, there is also more objectionable speech – and in turn more objection to it. This is what free-speech-crisis myth believers are picking up – a pushback against the increase in intolerance or bigotry. But they are misreading it as a change in free speech attitudes. This increase in objectionable speech came with a sense of entitlement – a demand that it be heard and not challenged, and the freedom of speech figleaf became a convenient tool. Not only do free speech warriors demand all opinions be heard on all platforms they choose, from college campuses to Twitter, but they also demand that there be no objection or reaction. It became farcical and extremely psychologically taxing for anyone who could see the dangers of hate speech, and how a sharpening tone on immigration could be used to make the lives of immigrants and minorities harder.

When Boris Johnson compared women who wear the burqa to “letterboxes” and “bank robbers”, it led to a spike in racist incidents against women who wear the niqab, according to the organisation Tell Mama, a national project which records and measures anti-Muslim incidents in the UK. Pointing this out and making the link between mockery of minorities and racist provocation against them was, according to Johnson’s supporters, assailing his freedom of speech. The British journalist Isabel Oakeshott tweeted that if he were disciplined by his party for “perfectly reasonable exercise of free speech, something has gone terribly wrong with the party leadership”, and that it was “deplorable to see [the Tory leadership] pandering to the whinings of the professionally offended in this craven way”.

Free speech had seemingly come to mean that no one had any right to object to what anyone ever said – which not only meant that no one should object to Johnson’s comments but, in turn, that no one should object to their objection. Free speech logic, rather than the pursuit of a lofty Enlightenment value, had become a race to the bottom, where the alternative to being “professionally offended” is never to be offended at all. This logic today demands silence from those who are defending themselves from abuse or hate speech. It is, according to the director of the Institute of Race Relations, “ the privileging of freedom of speech over freedom to life ”.

Our alleged free speech crisis was never really about free speech. The backdrop to the myth is rising anti-immigration sentiment and Islamophobia. Free-speech-crisis advocates always seem to have an agenda. They overwhelmingly wanted to exercise their freedom of speech in order to agitate against minorities, women, immigrants and Muslims.

But they dress these base impulses up in the language of concern or anti-establishment conspiracism. Similar to the triggers of political-correctness hysteria, there is a direct correlation between the rise in free speech panic and the rise in far-right or hard-right political energy, as evidenced by anti-immigration rightwing electoral successes in the US, the UK and across continental Europe. As the space for these views expanded, so the concept of free speech became frayed and tattered. It began to become muddled by false equivalence, caught between fact and opinion, between action and reaction. The discourse became mired in a misunderstanding of free speech as absolute.

As a value in its purest form, freedom of speech serves two purposes: protection from state persecution, when challenging the authority of power or orthodoxy; and the protection of fellow citizens from the damaging consequences of absolute speech (ie completely legally unregulated speech) such as slander. According to Francis Canavan in Freedom of Expression: Purpose As Limit – his analysis of perhaps the most permissive free speech law of all, the first amendment of the US constitution – free speech must have a rational end, which is to facilitate communication between citizens. Where it does not serve that end, it is limited. Like all freedoms, it ends when it infringes upon the freedoms of others. He writes that the US supreme court itself “has never accepted an absolutist interpretation of freedom of speech. It has not protected, for example, libel, slander, perjury, false advertising, obscenity and profanity, solicitation of a crime, or ‘fighting’ words. The reason for their exclusion from first-amendment protection is that they have minimal or no values as ideas, communication of information, appeal to reason, step towards truth etc; in short, no value in regard to the ends of the amendment.”

Those who believe in the free-speech-crisis myth fail to make the distinction between “fighting” words and speech that facilitates communication; between free speech and absolute speech. Using this litmus test, the first hint that the free speech crisis is actually an absolute speech crisis is the issues it focuses on. On university campuses, it is overwhelmingly race and gender. On social media, the free speech axe is wielded by trolls, Islamophobes and misogynists, leading to an abuse epidemic that platforms have failed to curb.

This free speech crisis movement has managed to stigmatise reasonable protest, which has existed for years without being branded as “silencing”. This is, in itself, an assault on free expression.

What is considered speech worthy of protection is broadly subjective and depends on the consensual limits a society has drawn. Western societies like to think of their version of freedom of speech as exceptionally pristine, but it is also tainted (or tempered, depending on where you’re coming from) by convention.

T here is only one way to register objection of abhorrent views, which is to take them on. This is a common narcissism in the media. Free speech proponents lean into the storm, take on the bad guys and vanquish them with logic. They also seem, for the most part, incapable of following these rules themselves.

Bret Stephens of the New York Times – a Pulitzer prize-winning star columnist who was poached from the Wall Street Journal in 2017 – often flatters himself in this light, while falling apart at most of the criticism he receives. For a man who calls for “free speech and the necessity of discomfort” as one of his flagship positions as a columnist, he seems chronically unable to apply that discipline to himself.

In his latest tantrum , just last week, Stephens took umbrage against a stranger, the academic David Karpf, who made a joke calling him a “metaphorical bedbug” on Twitter, as a riff on a report that the New York Times building was suffering from a bedbug infestation. (The implication was that Stephens is a pain and difficult to get rid of, just to kill the punchline completely.)

Stephens was alerted to the tweet, then wrote to Karpf, his provost, and the director of the School of Media and Public Affairs, where Karpf is a professor. He in effect asked to speak to Karpf’s managers so that he could report on a man he doesn’t know, who made a mild joke about him that would otherwise have been lost in the ether of the internet because – well, because, how dare he? The powerful don’t have to suffer “the necessity of discomfort”; it’s only those further down the food chain who must bear the moral burden of tolerance of abusive speech. Stephens’s opponents – who include Arabs, whose minds Stephens called “diseased”, and Palestinians, who are en masse one single “mosquito” frozen in amber – must bear it all with good grace.

Stephens has a long record of demanding respect when he refuses to treat others with the same. In response to an objection that the New York Times had published an article about a Nazi that seemed too sympathetic, he wrote: “A newspaper, after all, isn’t supposed to be a form of mental comfort food. We are not an advocacy group, a support network, a cheering section, or a church affirming a particular faith – except, that is, a faith in hard and relentless questioning.” He called disagreement “a dying art”. This was particularly rich from someone who at one time left social media because it was too shouty, only to return sporadically to hurl insults at his critics.

In June 2017, Stephens publicly forswore Twitter, saying that the medium debased politics and that he would “intercede only to say nice things about the writing I admire, the people I like and the music I love”.

He popped up again to call ex-Obama aide Tommy Vietor an “asshole” ( a tweet he later deleted after it was flagged as inappropriate by the New York Times). In response to a tweet by a Times colleague (who had himself deleted a comment after receiving flack for it, and admitted that it had not been well crafted), Stephens said: “This. Is. Insane. And must stop. And there is nothing wrong with your original tweet, @EricLiptonNYT. And there is something deeply psychologically wrong with people who think there is. And fascistic. And yes I’m still on Twitter.”

A dying art indeed. Stephens again deactivated his account after bedbug-gate, retreating to the safe space of the high security towers of the New York Times where, I am told, the bedbug infestation remains unvanquished.

Stephens is a promoter of the “free speech crisis” myth. It is one that journalists, academics and political writers have found useful in chilling dissent. The free-speech-crisis myth serves many purposes. Often it is erected as a moral shield for risible ideas – a shield that some members of the media are bamboozled into raising because of their inability to look past their commitment to free speech in the abstract.

T rolling has become an industry. It is now a sort of lucrative contact sport, where insults and lies are hurled around on television, radio, online and in the printed press. CNN’s coverage of the “Trump transition”, after Donald Trump was elected as US president, was a modern version of a medieval freak show. Step right up and gawk at Richard Spencer , the Trump supporter and head of far-right thinktank the National Policy Institute, as he questions whether Jews “are people at all, or instead soulless golem”. And at the black Trump surrogate who thinks Hillary Clinton started the war in Syria. And at Corey Lewandowski, a man who appeared on CNN as a political commentator, who appears to make a living from lying in the media, and who alleged that the Trump birther story , in which Trump claimed that Barack Obama was not born on US soil, was in fact started by Hillary Clinton.

In pursuit of ratings – from behind a “freedom of speech” figleaf, and perhaps with the good intention of balance on the part of some – many media platforms have detoxified the kind of extreme or untruthful talk that was until recently confined to the darker corners of Reddit or Breitbart. And that radical and untruthful behaviour has a direct impact on how safe the world is for those smeared by these performances. Trump himself is the main act in this lucrative show. Initially seen as an entertaining side act during his election campaign, his offensive, untruthful and pugnacious online presence became instantly more threatening and dangerous once he was elected. Inevitably, his incontinence, bitterness, rage and hatemongering, by sheer dint of constant exposure, became less and less shocking, and in turn less and less beyond the pale.

A world where all opinions and lies are presented to the public as a sort of take-it-or-leave it buffet is often described as “the marketplace of ideas”, a rationalisation for freedom of expression based on comparing ideas to products in a free-market economy. The marketplace of ideas model of free speech holds that what is true factually, and what is good morally, will emerge after a competition of ideas in a free, unmoderated and transparent public discourse, a healthy debate in which the truth will prevail. Bad ideas and ideologies will lose out and wither away as they are vanquished by superior ones. The problem with the marketplace of ideas theory (as with all “invisible hand”-type theories) is that it does not account for a world in which the market is skewed, and where not all ideas receive equal representation because the market has monopolies and cartels.

But real marketplaces actually require a lot of regulation. There are anti-monopoly rules, there are interest rate fixes and, in many markets, artificial currency pegs. In the press, publishing and the business of ideas dispersal in general, there are players that are deeply entrenched and networked, and so the supply of ideas reflects their power.

Freedom of speech is not a neutral, fixed concept, uncoloured by societal prejudice. The belief that it is some absolute, untainted hallmark of civilisation is linked to self-serving exceptionalism – a delusion that there is a basic template around which there is a consensus uninformed by biases. The recent history of fighting for freedom of speech has gone from something noble – striving for the right to publish works that offend people’s sexual or religious prudery, and speaking up against the values leveraged by the powerful to maintain control – to attacking the weak and persecuted. The effort has evolved from challenging upwards to punching downwards.

It has become bogged down in false equivalence and extending the sanctity of fact to opinion, thanks in part to a media that has an interest in creating from the discourse as much heat as possible – but not necessarily any light. Central in this process is an establishment of curators, publishers and editors for whom controversy is a product to be pushed. That is the marketplace of ideas now, not a free and organic exchange of intellectual goods.

The truth is that free speech, even to some of its most passionate founding philosophers, always comes with braking mechanisms, and they usually reflect cultural bias. John Milton advocated the destruction of blasphemous or libellous works: “Those which otherwise come forth, if they be found mischievous and libellous, the fire and the executioner will be the timeliest and the most effectual remedy, that mans [sic] prevention can use.” Today, our braking mechanisms still do not include curbing the promotion of hate towards those at the bottom end of the social hierarchy, because their protection is not a valued or integral part of our popular culture – despite what the free-speech-crisis myth-peddlers say.

Free speech as an abstract value is now directly at odds with the sanctity of life. It’s not merely a matter of “offence”. Judith Butler, a cultural theorist and Berkeley professor, speaking at a 2017 forum sponsored by the Berkeley Academic Senate, said: “If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values. We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech.”

We challenge this instrumentalisation by reclaiming the true meaning of the freedom of speech (which is freedom to speak rather than a right to speak without consequence), challenging hate speech more forcefully, being unafraid to contemplate banning or no-platforming those we think are harmful to the public good, and being tolerant of objection to them when they do speak. Like the political-correctness myth, the free-speech-crisis myth is a call for orthodoxy, for passiveness in the face of assault.

A moral right to express unpopular opinions is not a moral right to express those opinions in a way that silences the voices of others, or puts them in danger of violence. There are those who abuse free speech, who wish others harm, and who roll back efforts to ensure that all citizens are treated with respect. These are facts – and free-speech-crisis mythology is preventing us from confronting them.

This is an edited extract from We Need New Stories: Challenging the Toxic Myths Behind Our Age of Discontent, published by W&N on 5 September and available at guardianbookshop.co.uk

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The Debate Over Free Speech, Disinformation and Censorship

More from our inbox:, senator ted cruz responds, talking to children about cancer, why we keep our landlines, internet access.

To the Editor:

Re “ Trump Allies Are Winning War Over Disinformation ” (front page, March 17):

The U.S. Supreme Court put limits on free speech, saying you can’t falsely shout “fire” in a crowded theater. Fundamental to our democracy is an informed electorate. Yet our courts seem to be OK with a flood of lies and propaganda masquerading as news and aimed at burning down our democracy.

This should concern every American for several reasons, including the surge of social media sites that contain much misinformation, the closure of many local newspapers, a decline in the number of real journalists, and an increase in the amount of misinformation spread by adversaries like Russia and China in an attempt to affect the outcome of our elections.

Richard Dickinson Richmond Hill, Ga.

In the same way that semiautomatic guns and bump stocks were never foreseen by the founding fathers when establishing the Second Amendment, social media and A.I. escaped their prescience when it came to issues of free speech.

The commerce of ideas as they addressed it consisted primarily of public discourse via the printed or spoken word at social, political and religious gatherings. The idea that citizens would someday own portable electronic devices that facilitated both the easy manufacture and distribution of subjective realities certainly surpassed anything imagined in the Sedition Act.

America must now address two pressing questions that Madison, Hamilton and others were spared. How do we prevent the yelling of “fire” in a crowded theater when there is neither an actual theater nor an assembled crowd? And how do we stop domestic and foreign profiteers who would embrace the resultant turmoil?

Anthony Nannetti Philadelphia

There is a difference between supporting the First Amendment and hiding behind it. A presidential campaign that uses disinformation to subvert a fair and legal election is undermining the very democracy for which free speech is a bulwark.

Louis Greenstein Pleasantville, N.J.

A Supreme Court decision preventing the Biden administration from deciding what can and cannot be said on social media would also prevent a potential future Trump administration from deciding what can and cannot be said on social media.

Ronald J. DeFelice Irvine, Calif.

Re “ An Islamophobic Smear Campaign Is Dividing Democrats ,” by Lydia Polgreen (column, March 21):

Ms. Polgreen blames Islamophobia for Adeel Abdullah Mangi’s difficulty in getting confirmed to the U.S. Court of Appeals for the Third Circuit, and she accuses me of conducting “bad faith ambushes” because I asked Mr. Mangi during a Senate Judiciary hearing if he condemns Hamas’s Oct. 7 attack on Israel.

The reason I asked Mr. Mangi this question — which Ms. Polgreen fails to mention — is that Mr. Mangi has refused to denounce statements by the director of Rutgers’s Law School Center for Security, Race and Rights in which the director referred to Israel as an “occupying force” and accused Israel of engaging in “settler colonialism.” Mr. Mangi donated to the center and served for years on its board of advisers.

Ms. Polgreen also fails to note that the Senate confirmed another nominee, Zahid Quraishi, who, like Mr. Mangi, is Muslim and Pakistani American, with 81 votes — one of the highest vote totals for any judicial nominee of the Biden presidency.

The White House and Senate Democrats don’t want to defend Mr. Mangi on the merits of his record, so they instead accuse his critics of Islamophobia. That is a shameful attack.

Ted Cruz Houston The writer is a Republican senator from Texas.

Re “ How to Talk to Children About Cancer ,” by Talya Minsberg (Live, nytimes.com, March 22):

We were saddened to learn that Catherine, Princess of Wales, has been diagnosed with cancer. Our thoughts as therapists immediately turned to her children and the challenge of having difficult conversations. We agree with Ms. Minsberg’s recommendations.

No one can provide better care than a parent as their child experiences emotional trials. Illness is inevitable, and caring for a child through a family illness is an inevitable part of parenting. This affects the parent, too, but they can be most effective in helping a child by attending to their own feelings first; then they can fully focus on their child’s needs.

We believe that being honest with a child is always best. Tell the truth, but only the amount that a child can hear and digest at any given moment. Take the lead from what a child asks, making sure the tone and the answer align with where a child is. This conversation is an ongoing one that will be elaborated on over time.

We believe that the best antidote to the fear and pain of loss is togetherness. As Catherine said : “Please do not lose faith or hope. You are not alone.”

Elena Lister Michael Schwartzman New York The writers, a psychiatrist and a psychologist, respectively, are co-authors of “Giving Hope: Conversations With Children About Illness, Death and Loss.”

Re “ Speaking Out for Landlines in Digital Age ” (front page, March 17):

My wife and I are on the high side of 65, and we pay for a landline only as a lifeline as we deal with the never-ending onslaught of power outages wrought by National Grid in Massachusetts, some as long as 10 days in our years here.

We also live in a mobile phone dead zone. So our mobile phones must depend on internet Wi-Fi for all calls. When the electricity goes out, so does the internet, hence our lifeline to the outside world in times of crisis.

We plug in two touch-tone phones to replace cordless phones when there is no juice from National Grid. Whether AT&T, Verizon and others like it or not, plain old telephone service (POTS) is as close to 100 percent reliable as you can get. But now they want to tear out the copper, forcing us to unreliable telephone service.

Ben Myers Harvard, Mass.

You’ll have to pry my landline phone from my cold, dead hands.

I find it absolutely ridiculous and user-unfriendly to hold a screen to my ear, as well as to then hold the phone back where I can see the screen in order to find the keypad, while missing the spoken conversation.

Claire Albahae Brewster, N.Y.

Re “ Millions Are Set to Lose Internet Access Subsidies ” (news article, March 24):

During our history, Americans brought mail service, electrification and telephone service to all corners of the country. Why the lessons learned from these experiences can’t be used to solve the challenge of similarly providing residential internet access coast to coast as well is a damning indictment of our broken national politics.

Gary Rucinski Newton, Mass.

Justifications for limits on freedom of speech

4.41      In the US, doctrine on First Amendment freedom of speech is said to be characterised by a categorical approach to justification, according to which the law is dominated by relatively inflexible rules, each with application to a defined category of circumstances. [51]

4.42      In other jurisdictions, bills of rights generally allow for limits on rights provided the limits are reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’. [52] Article 19.3 of the ICCPR and the Siracusa Principles [53] also provide guidelines on when limits on freedom of speech may be justified.

4.43      The literature on freedom of speech is extensive and there is considerable disagreement about the appropriate scope of the freedom. Professor Adrienne Stone observed that the ‘sheer complexity of the problems posed by a guarantee of freedom of expression’ makes it unlikely that a single ‘theory’ or ‘set of values’ might be appropriate in resolving ‘the entire range of freedom of expression problems’. [54]

4.44      In relation to justifications for limiting freedom of expression, the UN Human Rights Committee has stated:

When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat. [55]

4.45      Some stakeholders expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of speech. [56] As discussed above, in relation to the constitutional implied freedom of political communication, a form of proportionality test has been expressly endorsed by the High Court. [57]

Legitimate objectives

4.46      The threshold question in a proportionality test is whether the objective of a law is legitimate. Outside constitutional contexts, some guidance on the legitimate objectives of a law that interferes with freedom of speech may be derived from the common law and international human rights law.

4.47      The common law and international human rights law recognise that freedom of speech can be restricted in order to pursue legitimate objectives—such as the protection of reputation and public safety. Many existing restrictions on freedom of speech are a corollary of pursuing other important public or social needs, such as the conduct of fair elections, the proper functioning of markets or the protection of property rights.

4.48      In the context of the constitutional implied freedom of political communication, the purpose of a law limiting freedom of speech must be compatible with the constitutionally prescribed system of government. On this approach, the High Court may consider an objective to be legitimate provided simply that it is not directed to regulating political communication. [58]

4.49      Another judicial approach is to address the question of legitimate objective by reference to considerations of the common law. For example, in Monis , Hayne J observed that ‘the common law has never recognised any general right or interest not to be offended’ [59] and that it would be incongruent with common law rules of defamation, to find as legitimate, a statutory purpose of preventing serious offence without any defence of truth or qualified privilege. [60]

4.50      Associate Professor James Stellios has written that the broader High Court approach should be preferred ‘as it allows for political processes to determine legitimate ends; not traditional conceptions of legally cognisable rights or interests’. That is, provided a law is ‘not directed to regulating political communication, it should be considered to be legitimate, and then subjected to the rigour and transparency of a proportionality analysis’. [61]

4.51      International law gives some other guidance on what legitimate objectives may justify restrictions on freedom of speech more generally. The ICCPR states that the exercise of freedom of expression ‘carries with it special duties and responsibilities’:

It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a)     For respect of the rights or reputations of others; (b)     For the protection of national security or of public order ( ordre public ), or of public health or morals. [62]

4.52      Many laws that restrict freedom of speech can be seen as pursuing these objectives. For example, many criminal laws—and incitement offences—clearly protect the rights of others, including the right not to be a victim of crime. Some criminal laws, such as counter-terrorism laws, are concerned with the protection of national security or public order. [63]

4.53      Some secrecy laws prohibit the disclosure of information that has the potential to damage national security—such as those in the ASIO Act —or public order. It may be harder to justify secrecy offences where there is no express requirement that the disclosure cause, or be likely to cause, a particular harm. [64] Arguably, public order is not necessarily engaged where the objective of a secrecy offence is simply to ensure the efficient conduct of government business or to enforce general duties of loyalty and fidelity on employees.

4.54      On the other hand, some regulatory agencies, such as taxation, social security and health agencies, and regulatory and oversight bodies such as corporate regulators, need to strictly control disclosures of sensitive personal and commercial information provided to them by the public. For these agencies, the harm caused by the unauthorised disclosure of this information is not only harm to a person’s privacy or commercial interests, but harm to the relationship of trust between the government and individuals which is integral to an effective regulatory or taxation system, and the provision of government services. [65] Avoiding this harm may more easily be seen as implicating ‘public order’, in the sense used in the ICCPR.

4.55      To the extent that contempt laws may be characterised as limiting freedom of speech, the laws may be justified as protecting the rights or reputations of others, and public order, because protecting tribunal proceedings can be seen as essential to the proper functioning of society. A limitation to freedom of speech based upon protecting the reputation of others should not be used to ‘protect the state and its officials from public opinion or criticism’. [66]

4.56      However, the justification of proceedings for contempt of court or Parliament ‘lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people’. [67]

4.57      Restrictions on freedom of speech under anti-discrimination laws may also be justified under the ICCPR if they are necessary to respect the rights or reputations of others, including the right to effective protection against discrimination, as provided by art 26.

4.58      Laws to prevent or restrict dissemination of indecent or classified material, such as the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ( Classification Act ), may be justified as protecting public health or morals. As discussed below, limitations on unsolicited telemarketing calls contained in the Do Not Call Register Act 2006 (Cth) have been justified as protecting privacy; and tobacco advertising prohibitions as protecting public health. [68]

4.59      There remain other laws restricting freedom of speech and expression that do not as obviously fall within the permissible limitations referred to in art 19 of the ICCPR.

Balancing rights and interests

4.60      Eric Barendt has stated that it ‘is difficult to draw a line between speech which might appropriately be regulated and speech which in any liberal society should be tolerated’. [69] The difficulty is always balancing the respective rights or objectives.

4.61      The UN Human Rights Committee has observed that the principle of proportionality must take account of the ‘form of expression at issue as well as the means of its dissemination’. For instance, the value placed on ‘uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain’. [70] This is consistent with the additional constitutional protection afforded under Australian common law to political communication.

4.62      The Centre for Comparative Constitutional Studies submitted that in applying the principles of proportionality to limitations on freedom of speech, regard should be had to the following:

•        whether the law interfering with freedom of speech is ‘content-neutral’ or ‘content-based’; •        the extent to which the law interferes with freedom of speech including the availability of alternative, less restrictive means; and •        the nature of the affected speech. [71]

4.63      In relation to the first of these criteria, a content-based law aims to address harms caused by the content of the message communicated. Defamation laws, hate speech laws, laws regulating obscenity or pornography, and laws directed at sedition were given as examples of content-based laws.

4.64      In contrast, a content-neutral law is directed towards some other purpose unrelated to the content of expression. Laws directed to the ‘time, place and manner’ in which speech occurs, such as laws that regulate protest—by requiring that protest be limited to certain places or times—laws that impose noise controls, or that limit the distribution of leaflets directed at preventing litter were given as examples of content-neutral laws. [72]

4.65      The Centre for Comparative Constitutional Studies submitted that content-based laws should, ‘as a general matter, be considered more difficult to justify than content-neutral laws’. [73] The Centre also submitted that, as a general matter, the more extensive the limitation on speech, the more significant the justification for that limitation must be. Therefore extensive or ‘blanket’ bans on speech in a particular context or of a particular kind, will be more difficult to justify than laws that apply in only some circumstances or in some places. Further, some speech should be regarded as especially valuable. In particular, speech about political matters, in various forms, was said to require a higher level of protection, and laws that operate to interfere with political speech should require special justification. [74]

4.66      These views are consistent with High Court statements that a distinction may be made between ‘restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted’. [75] Under a proportionality test, a more compelling justification for the burden on political communication is required for restrictions on content rather than mode of communication.

Stone, above n 13, 8.

Canadian Charter of Rights and Freedoms s 1. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; New Zealand Bill of Rights Act 1990 (NZ) s 5.

United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights , UN Doc E/CN.4/1985/4, Annex (28 September 1984).

Stone, above n 13, 21.

United Nations Human Rights Committee, General Comment 34 on Article 19 of the ICCPR on Freedoms of Opinion and Expression , UN Doc CCPR/C/GC/34 (12 September 2011) [35].

National Association of Community Legal Centres, Submission 143 ; Law Council of Australia, Submission 75 ; Centre for Comparative Constitutional Studies, Submission 58 ; Public Interest Advocacy Centre, Submission 55 ; UNSW Law Society, Submission 19 . FamilyVoice Australia referred to the ‘harm principle’, the ICCPR and the Siracusa Principles as providing a proper basis for determining whether limitations on freedom of expression are justified: FamilyVoice Australia, Submission 73 .

McCloy v New South Wales [2015] HCA 34 (7 October 2015).

James Stellios, ‘The Second Limb of Lange: The Continuing Uncertainties with the Implied Freedom of Political Communication’ (Research Paper 14–49, ANU College of Law, 2015) 6. Referring to Monis v The Queen (2013) 249 CLR 92 [349] (Crennan, Kiefel and Bell JJ); Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [221] (Crennan, Kiefel and Bell JJ). Of course, a purpose may still be legitimate even where it is directed to regulate political communication, but it must do so for a legitimate purpose, for example, to prevent corruption in the political process.

Monis v The Queen (2013) 249 CLR 92 [223].

Ibid [213].

Stellios, above n 58, 8.

International Covenant on Civil and Political Rights , opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19.3.

The Siracusa Principles define ‘public order’, as used in the ICCPR, as ‘the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’: United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights , UN Doc E/CN.4/1985/4, Annex (28 September 1984) [22]. The Siracusa Principles also state that ‘respect for human rights is part of public order’.

See, eg, Australian Law Reform Commission, Secrecy Laws and Open Government in Australia , Report No 112 (2009) Ch 8.

Ibid [8.145].

United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights , UN Doc E/CN.4/1985/4, Annex (28 September 1984) [37]. Cf Nationwide in relation to the constitutional implied right in Australia: Nationwide News v Wills (1992) 177 CLR 1.

Theophanous v The Herald and Weekly Times Ltd (1994) 182 CLR 104, 187 (Deane J).

Tobacco advertising prohibitions are discussed in Ch 19, in relation to property rights.

Barendt, above n 2, 21.

United Nations Human Rights Committee, General Comment 34 on Article 19 of the ICCPR on Freedoms of Opinion and Expression , UN Doc CCPR/C/GC/34 (12 September 2011) [34].

Centre for Comparative Constitutional Studies, Submission 58 .

Australian Capital Television v Commonwealth (1992) 177 CLR 106, 143 (Mason CJ). See also 234–5 (McHugh J).

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Challenges of Ethically Regulating Free Speech on College Campuses

By shoellis

By: Olivia Welsh, Ethics and Policy Intern

Each day, headlines highlight the ongoing questions we have about the role of universities in public discourse. These conversations center on questions surrounding political neutrality, what is considered “appropriate” speech from students and faculty, and how to protect university community members from harm. These are not new questions, but the escalation of the Israel-Palestine conflict, from everyday campus protests to Ivy League president resignations, has brought the issue of free speech on college campuses to a boiling point.

A university or higher-education institution is inherently a setting where intellectual and ideological disagreement will occur – and should even be encouraged. The challenge is where and how do we draw the line. What type of speech is so harmful to members of the community that it must be restricted? Who gets to decide the line between right and wrong? What is a university’s responsibility to speak out about the social and political issues of the day?

Being uncomfortable is a necessary part of growth. Being unsafe is not. This is the balance that colleges and universities are trying to strike every day. Can there ever be an institution that gets it exactly right in the eyes of all?

The background of college campus free speech

In the 1960s, free speech on college campuses was at the forefront of higher education discussions. The University of Chicago made its first attempt at taking an official stance by publishing the Kalven Report. This 1967 statement, still in use today, argues that institutions should remain socially and politically neutral while fostering lively debate among their members. The authors of the Kalven Report believed that a university should not suppress any viewpoints or change its corporate activities to foster social or political values.

“The university is the home and sponsor of critics; it is not itself the critic. […] To perform its mission in society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures” [5].

In short, the report states that a university should be a place to discuss all possible perspectives without censorship. The members of a university community can come to their own conclusions and act independently of the institution itself. The Kalven Report pushes back at anyone who might consider such a choice to not weigh in on the topics of the day as cowardly or uncaring:

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” [5]

In 2014, the University of Chicago decided to make another statement amidst an onslaught of various free speech lawsuits against universities nationwide. The resulting Chicago Principles delineate a clear and longstanding commitment to free speech and allow a wide diversity of ideas to be discussed in the University setting. The Chicago Principles reiterate the sentiment of the Kalven Report, calling debate and deliberation essential to higher education, even if the ideas discussed are viewed as “offensive, unwise, immoral, or wrong-headed” [8]. It guarantees “the broadest possible latitude to speak, write, listen, challenge, and learn,” provided that such behavior does not interfere with the core functioning of the university [8]. Furthermore, the Chicago Principles demand that all community members not obstruct or otherwise interfere with others’ freedom of speech. The Chicago Principles conclude by arguing that “without a vibrant commitment to free and open inquiry, a university ceases to be a university” [8].

These are the positions that the University of North Carolina System (“UNC System”) adopted in 2017, as endorsed by the University of North Carolina at Chapel Hill’s (“UNC-Chapel Hill”) Faculty Council and Board of Trustees [10] [3]. The UNC System schools are among over 100 other colleges and universities nationwide that have adopted the Chicago Principles, including several of our peer institutions [4]. In 2022, the UNC-Chapel Hill Board of Trustees took a further step in protecting free speech by adopting the Kalven Report [2].

“The mission of The University of North Carolina at Chapel Hill is advanced by our commitment to the aspirational principles that guide our public conversation no matter how unsettling […] At Carolina, we have long known that light and liberty are the essential tools that allow problems to be seen, ideas to be tested, and solutions to be found,” the Faculty Council states [10].

Of course, both the UNC System and UNC-Chapel Hill have policies regulating free speech, which forbid defamation, unlawful harassment, true threats, unjust invasions of privacy, and more (see the UNC System Policy and the UNC-Chapel Hill Policy ). However, these policies leave several unanswered questions. For example, it is not always clear what speech falls under the category of a “true threat,” especially because that might mean different things to different people.

When does protecting free speech interfere with a university’s teaching mission and functioning? Do institutions have a different obligation to protect historically marginalized groups compared to historically well-represented groups? What is a university’s responsibility in addressing social and political issues? There are no “right” answers, but some views on these questions are explored below.

When does protecting free speech inhibit a university’s functioning?

The Kalven Report, the Chicago Principles, and the UNC policies all indicate that it is appropriate to restrict free speech when it interferes with the necessary functioning of the university, with safety concerns being of utmost importance. Beyond cases like riots that would physically disallow classes from taking place and endanger members of the university, disruptions like exclusionary speech could also be viewed as interfering with a university’s core functioning by hindering equal access to education. If it is a university’s mission to educate all its students, but a particular group feels unreasonably ostracized due to the free speech of others and feels unable to attend or participate in class, then one could argue that speech is interfering with the necessary functioning of the university.

Say that, while not violating any laws, an anti-Black Lives Matter (“BLM”) speaker comes to campus and delivers a scathing condemnation of the BLM movement. However, the speaker’s remarks and student participation in the event make Black students feel unwelcome on campus, and therefore, these students find it harder to benefit from their education. Does this qualify as speech that interferes with the university’s functioning? And if so, should it not be welcomed on campus?

On the flip side, does inhibiting a challenging viewpoint negatively impact the educational environment? Students should have the opportunity to grapple with difficult ideas and the controversies of the day – that is part of what is so valuable about a liberal arts education. Colleges are not full of fragile students who cannot stand to hear free speech, and they should not be portrayed as such. The key is creating an environment where the needs of all students remain supported even during protests, controversial speakers, and difficult discussions. However, it is not easy to prescribe a single policy for handling free speech since circumstances vary dramatically from institution to institution [1].

Is there a different obligation to protect historically marginalized groups at a university?

Continuing with this hypothetical of an anti-BLM speaker on campus, how might appropriate free-speech regulation differ based on context? According to UNC System data, just over 8% of UNC-Chapel Hill’s undergraduate student body identifies as Black/African American [11]. In the context of having such a significant minority, is it justified to more strictly regulate free speech that makes Black students feel unwelcome and further marginalized at the university?

One might think that free speech should be fully protected regardless because any university member in opposition has an equal right to free speech in response. However, just because someone has the right to free speech does not mean they feel reasonably empowered to use it. This highlights the important distinction between equality, which treats everyone the same, and equity, which recognizes that creating a level playing field often means allocating more or less resources to particular individuals or groups based on their specific circumstances. Giving all campus community members the same right to free speech is equal, but equitable free speech would amplify and protect minority groups.

The teaching mission of a university relies on an inclusive climate. Institutional attention is necessary to ensure that all students in diverse classrooms are comfortable being involved in the learning experience. Because it is important to include ALL students in an environment of free inquiry, there is an argument that free speech that specifically marginalizes an already minority group must be more strictly regulated than controversial speech that makes a majority group uncomfortable [1].

This is where context is important because, unlike UNC-Chapel Hill, Howard University (“Howard”) has a very strong majority of Black students. At Howard, Black students would likely not feel as threatened by an anti-BLM speaker; therefore, students could more comfortably engage in rigorous debate and grapple with differing viewpoints, which is essential in higher education.

What is a university’s responsibility to govern speech on campus about social and political issues?

This past November, a speaker unaffiliated with UNC-Chapel Hill made remarks on campus that sympathized with the violence perpetrated by Hamas against Israeli citizens on October 7th, 2023 [7]. Such tolerance for violence (which killed over a thousand Israeli citizens) is clearly alarming and certainly falls under the category of speech seen as “offensive, unwise, immoral, or wrong-headed.” But remember that, in the spirit of free inquiry and true academia, the Chicago Principles protect such speech. The remarks did not include a threat or any other banned speech.

Then-Chancellor Kevin Guskiewicz strongly condemned the remarks, as did the Dean of the College of Arts and Sciences and many others at UNC-Chapel Hill. Months later, the Faculty Council, the same one that originally endorsed the Chicago Principles, considered a resolution to “strongly condemn the antisemitic statements at the event.” The group decided to indefinitely postpone the resolution, avoiding taking a side on its merits. While some did feel strongly that the remarks were antisemitic, others viewed this as a mislabeling since the comments contained no mention of the Jewish religion or people and only directly criticized the actions of the Israeli state .

There is another tricky consideration – if the Faculty Council passes a resolution condemning antisemitism, must it follow this up with a condemnation of Islamophobia to ensure neutrality and inclusivity? Does this set a precedent by which the Faculty Council must condemn any speech it regards as harmful, even if the speech does not violate the UNC System or UNC-Chapel Hill free speech policies? Who decides what should and should not be condemned, and where is the line drawn regarding what warrants a comment?

Certainly, this is not to say that members of an institution cannot or should not speak up against violence or perceived hate. Still, at the institutional level, there are significant policy ramifications to consider in protecting free speech and thorough education [7]. Starting to weigh in on social and political issues is a slippery slope for universities because it creates an expectation of doing so for all issues. The authors of the Kalven Report anticipated this and promoted institutional neutrality, trying to make a university a simple facility where lively debates on the day’s topics can occur.

This is a perfectly reasonable argument, but there is another drastically different viewpoint. Is institutional neutrality just a convenient excuse for universities to stay silent and take the “easy way out?” [12]. At Indiana University (“IU”), administrators recently caused an uproar when they canceled a scheduled art exhibition by a Palestinian-American artist. IU administration cited security concerns as the reason for the cancellation. However, the artist, members of the IU community, and outside organizations speculate that the real reason is a reaction to comments by an Indiana congressman who threatened to withhold federal funding from IU if it failed to address perceived antisemitism concerns adequately [6].

Walking a political tightrope does not seem to be a legitimate reason for censorship at a public university. Institutional neutrality that allows for all viewpoints to be expressed is very different than a restrictive “institutional neutrality” that prohibits any viewpoints from being expressed. Universities risk establishing an orthodox view on campus by making statements or taking actions regulating free speech, thereby ostracizing alternative thinkers [9]. While a university might not be responsible for acting on social and political issues (the substance for a whole different debate), it does have a responsibility to facilitate an environment that considers social and political issues and equips its students to handle these difficult or delicate issues once they graduate.

Between a rock and a hard place

There are still so many unanswered questions regarding free speech on campus, and it is doubtful that a satisfactory solution will ever be reached. Any policy on free speech must consider legal constraints, institutional missions, and the feelings of students, faculty, and staff. With so many stakeholders to satisfy, it makes sense that the issue of free speech on campus keeps coming up.

During controversial times, it is helpful to remember that heated moments subside, and history reflects that. “Right answers” are hard to come by, but at the end of the day, a university that can keep its campus community safe and facilitate productive conversations is doing its job pretty well.