free speech definition essay

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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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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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• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
• Knight First Amendment Institute at Columbia University
• van Mill, David, “Freedom of Speech”, Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2023/entries/freedom-speech/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy – see the version history .]

ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

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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Explainer: what is free speech?

Associate Professor in Political Science and International Relations, The University of Western Australia

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David van Mill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.

The term “free speech” is not ideal. The “free” part skews in favour of those who oppose regulation and the “speech” part puts the focus on the spoken word, even though the discussion embraces wider communication including art, writing, films, plays, flag burning and advertising.

It might, therefore, be better to drop the term “free speech” to highlight that the debate is really about whether or not we should regulate the communication of ideas, thoughts and beliefs.

This analysis, however, is not the place to rewrite the terms of reference. So I will use the term free speech with the caveat that “free” does not mean a lack of regulation, and “speech” covers a variety of activities.

Justifying free speech

It is not enough to say “three cheers for speech!”, because if we don’t know why speech is important we don’t know if it is worth protecting.

John Stuart Mill thought that freedom of thought and discussion (he doesn’t use the term “free speech”) is valuable because it brings us closer to the truth, which in turn promotes utility. Alexander Meiklejohn suggests speech is important because it allows for democratic self-government. And Thomas Scanlon and C. Edwin Baker argue that free expression is justified because it promotes autonomy.

These are the three heavyweight contenders in the debate about why speech is important.

The important thing to notice about all of them is that the justification offered in favour of speech also allows for some limitations. If expression is justified because it promotes truth, we have no grounds for defending it when truth is undermined. Speech that damages democratic processes will find itself unprotected by the self-government thesis. And if the autonomy argument is compelling we will not want to protect speech that undermines this goal.

The heated debate about “political correctness” (a term I dislike), or PC, demonstrates this nicely. The usual claim is that PC stifles free speech. This accusation is difficult to quantify. PC might, for example, limit the speech of white men but enhance that of minorities; I would need more data before reaching a conclusion.

But the complaint itself tells us something about the complex nature of speech. Why complain at all? The usual answer is that communication is being muted by PC. This seems to be an argument that we should oppose PC in the name of free speech itself. To make this claim we need to show why speech is important (enter justification here). Once we offer a justification we again have an argument for why speech can be limited.

Perhaps combining the three justifications discussed above will allow for lots of unregulated speech. This doesn’t seem to work because the three accounts often clash. Justifying speech because it promotes truth, for example, seems to allow silencing many a politician (oh joy!) and hence interfering with political speech.

These difficulties suggest that any persuasive argument about speech (as opposed to saying “three cheers”) has to embrace the fact that speech can, and indeed should, be limited. An even more confronting conclusion is that giving reasons for why speech is important makes us reveal underlying values that seem to be even more fundamental than speech itself.

Which speech deserves special protection?

Having (hopefully) established that speech is not unconditionally good, the next task is to determine what the appropriate limits should be.

This will depend in large part on why speech is justified in the first place. The autonomy account will offer different protections than the truth/utility account which in turn will differ from the self-government justification.

Mill, for example, tells us that truth is best promoted by allowing a great deal of communication. But he is willing to shut down speech if it leads to unacceptable harm. This argument faces difficulties, one being harmful speech might lead us towards truth.

His justification for speech seems to clash with his reason for limiting speech. Mill was a pretty smart guy, but even he struggled to provide a coherent and consistent position on free speech.

The thing to keep in mind is that the justifications we use to defend speech will always prioritise some forms of communication over others, and this will be our guide to picking out speech most in need of protection. This again suggests that speech is not valuable in and of itself.

Should some speech acts be punished?

What should we do with speech that is not protected by our favoured justification? The answer depends on balancing the speech act in question against other values.

If the speech is not causing harm we might want to leave it alone. Others might think that harmless but grossly offensive speech should be punished. If speech reveals wartime secrets to the enemy we might want to put the person in prison.

Engaging in hate speech in Europe can quite possibly lead to the same outcome. Libel will incur civil rather than criminal charges. And Mill suggests that in many instances the appropriate punishment for speech is “social disapprobation” rather than legal penalty.

The reason why the argument over free speech has not been put to bed long ago is that people bring different sets of values to the discussion. The debate does not takes place in a vacuum and arguments have to be assessed against social norms, values and institutions. Speech is a social phenomenon because it requires speakers and listeners to engage with one another. The “problem” of free speech does not exist for the person stranded on a deserted island.

Even people with the same values can disagree on the facts of the matter. They might accept Mill’s argument that speech can be limited if it causes harm but disagree over whether hate speech, for example, is captured by the harm principle.

The topic quickly becomes devilishly difficult. The one thing I can say with confidence is that it is unlikely a one-size-fits-all principle will help us navigate the treacherous waters of free speech.

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Events, news & press, free speech.

While many Americans take free speech for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting. Is it time to reconsider the nation’s free-speech orthodoxy?

Nearly everyone has experiences that contradict the children’s rhyme “sticks and stones may break my bones, but words will never hurt me.” Words can be painful. And that is particularly true in the age of social media, when a viral tweet or insensitive post can hurt feelings and damage reputations.

Despite this reality, the United States maintains a strong legal and cultural tradition of free speech. While many Americans take it for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting.

Is it time to reconsider the nation’s free-speech orthodoxy?

Part 1: What is freedom of speech?

The First Amendment of the Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At its core, the Constitution’s robust protections for speech are intended to preserve and protect liberty. Hoover Institution senior fellow Peter Berkowitz  highlights  how the First Amendment connects freedom of speech with liberty:

Its position in the text of the First Amendment symbolizes free speech’s indissoluble connection to religious and political liberty. One can neither worship (or decline to worship) God in accordance with one’s conscience, nor persuade and be persuaded by fellow citizens, if government dictates orthodox opinions and punishes the departure from them. Indeed, the more authorities—whether formally through the exercise of government power, or informally through social intolerance—prescribe a single correct view and demonize others, the more citizens lose the ability to form responsible judgments and defend the many other freedoms that undergird human dignity and self-government.

Freedom of speech protects your right to say things that are disagreeable. It gives you—and everyone else—the right to criticize government policies and actions.

Part 2: What isn’t protected?

It sounds straightforward, “Congress shall make no law . . . abridging the freedom of speech,” but the First Amendment isn’t absolute. Hoover Institution senior fellow Richard Epstein  offers a framework  for how to think about free speech and its limits:

The First Amendment clearly covers the spoken word, written pamphlets, and books. By analogy, it also reaches other expressive activities like drawing, dancing, and acting. But no one could claim that it also protects mayhem, murder, defamation, and deceit. The only way to draw the right line—that between expression and violence—is to recognize that the First Amendment is as much about  freedom  as it is about speech. The necessary theory of freedom applies equally to all forms of speech and action, and it draws the line at the threat or use of force, even if the former counts as speech and the latter does not.

As the video below explains, the general principle of the nation’s free-speech rules is that your speech is protected so long as it doesn’t harm others.

But this raises the question: what should count as a harm? In our legal system there are well-defined examples where speech is not protected, because it hurts someone. You can’t lie about someone to harm their reputation. That’s called defamation. You can’t misrepresent the truth to people for your own gains. That’s fraud. And the First Amendment doesn’t permit you to advocate for the immediate use of force against someone else.

But there are other times when speech is protected even when someone may claim to be harmed. Mean or hateful words that may be true or a matter of opinion are generally protected by the First Amendment, even if they offend someone. You may think that is wrong. And there are plenty of countries that agree with you. Many countries have enacted strong hate-speech laws that prohibit derogatory remarks about a person’s race or religion. Peter Berkowitz  summarizes  new restrictive speech laws recently enacted by other nations:

In 2017, Germany enacted a law that obliges social media networks to be more “diligent in policing ‘hate speech’ on their platforms.” The next year, France adopted a similar law. A substantial plurality of British voters in 2018 believed that people do not feel free to express their opinions on “important issues.”

But there is a danger to these rules. As the video below highlights, enacting laws that ban offensive speech mean that “the people who disagree with you the  most  would have the most control over what you’re allowed to say.”

In an interview with Tunku Varadarajan , Richard Epstein explains the consequences of laws that ban offensive speech: “Everybody offends everybody a large fraction of the time. So, if I am insulting to you because you’re a progressive and you’re insulting to me because I’m a conservative, and if we allow both people to sue, then neither can talk.” The end result is that debate and free expression are stifled.

Part 3:  What about private restrictions on speech?

The First Amendment constrains the federal government from infringing on most speech, and the Fourteenth Amendment extended these constraints to state and local governments. But the First Amendment’s protections don’t apply to the personal and private interactions of people or businesses. If people disagree with you, they are free to stop listening. And companies are generally free to stop doing business with people with whom they disagree. Nor is anyone obligated to provide a forum for anyone else’s speech. Richard Epstein  explains:

Freedom of speech means that you have the right to use your own resources to advance your own causes. But it doesn’t give you, in the name of free speech, the right to take somebody’s telephone, somebody’s house, or somebody’s anything in order to use it for your own purposes.

But while private actors are not bound by the First Amendment, many private institutions have thrived because they have embraced a culture of free speech. For example, private universities have historically maintained broad academic freedoms for its faculty and students that allow for robust dissent on campuses. Recently, however, some universities have adopted policies that take a narrower view of what is acceptable speech.  Here’s Peter Berkowitz :

At universities, America’s founding promise of individual freedom and equality under law is often treated as irredeemably tainted by racism and sexism, colonialism and imperialism. In some cases, free speech is placed on the list of “incorrect phrases” that ought not be uttered, because it belongs among the “impure thoughts” of which minds must be cleansed.

Berkowitz notes, “Ninety percent of American universities censor speech or maintain policies that could authorize administrators to engage in censorship.” These rules are well intentioned. They are intended to promote a safe and welcoming environment for students and faculty. But a rejection of free speech has significant costs.

Part 4:  What are the benefits of free speech?

Without protections for speech—particularly for disagreeable speech—our liberties are more easily threatened. But free speech is important even beyond its value to our liberty. The free exchange of ideas—even ones that are disagreeable—is key to future prosperity. Hoover Institution research fellow Ayaan Hirsi Ali  explains  why:

Societies since the Enlightenment have progressed because of their willingness to question sacred cows, to foster critical thinking and rational debate. Societies that blindly respect old hierarchies and established ways of thinking, that privilege traditional norms and cower from giving offense, have not produced the same intellectual dynamism as Western civilization. Innovation and progress happened precisely in those places where perceived “offense” and “hurt feelings” were not regarded as sufficient to stifle critical thinking.

Diversity of thought isn’t just a matter of freedom; it is also an important ingredient to progress. When society discourages dissent or governments dictate the bounds of acceptable opinions, there is less innovation, and incorrect yet popular ideas go unchallenged. Economist Milton Friedman explains how diversity and freedom of all types are integral to a thriving society in this video:

Part 5: How do we preserve freedom of speech?

Preserving our liberties and ensuring a vibrant, innovative society requires free speech. Well-intentioned efforts to protect people from speech that offends is thus a threat to our free and prosperous society. What steps can we take to ensure free speech remains a cherished value for future generations?

Hoover Institution research fellow David Davenport  makes a case  for reprioritizing civic education in US schools. Testing reveals that a shrinking number of students are knowledgeable about US history. Increased funding and improved curriculum for civic education will ensure that future generations understand and appreciate the nation’s tradition of free speech.

Higher education also has a role to play. Public universities are generally bound by the First Amendment, but all universities—public and private—should remember the value academic freedom brings to campuses and to all of society. As Richard Epstein  argues :

The First Amendment prohibition does not allow one person to commandeer the property of another for his own purposes. But in terms of their roles in society, there is a critical difference between a university and a private business: Universities have as their central mission the discovery and promotion of knowledge across all different areas of human life.

Part 6:  Conclusion

All too often, support for free speech depends on who is talking and what is being said. Partisanship too frequently shapes our view of just how expansive the First Amendment should be. But we should remember how the nation’s strong tradition of free speech has helped protect the freedoms of all Americans. It has empowered citizens to speak against and undo unjust laws. And it has helped create a vibrant, diverse economy with widespread prosperity.

Does this mean there is nothing we can do about speech we find disagreeable or offensive? Certainly not. As  the video above explains : “The way to respond to offensive speech isn’t to use force—it’s to counter with persuasive speech of your own.”

Citations and Further Reading

In his essay  Rewriting the First Amendment ,  Richard Epstein explains the dangers of a proposed constitutional amendment to restrict spending for political speech.

In  an interview on  Uncommon Knowledge ,  Ayaan Hirsi Ali emphasizes the importance of free speech in addressing the nation’s racial inequalities.

To view the original article, click here .

View the discussion thread.

Join the Hoover Institution’s community of supporters in ideas advancing freedom.

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The first amendment, interactive constitution: the meaning of free speech.

August 13, 2017 | by Geoffrey R. Stone and Eugene Volokh

In this essay from the National Constitution Center's Interactive Constitution project, Geoffrey R. Stone from the University of Chicago Law School and Eugene Volokh from the UCLA School of Law explain the meanings and limitations of free speech and a free press under the First Amendment.

Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its content —that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

g. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Geoffrey R. Stone is Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School. Eugene Volokh is Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law.

To read more from these authors on Matters of Debate about freedom of speech and freedom of the press, go to our Interactive Constitution First Amendment section at  https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/266

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Know Your Rights

• What is Free Speech
• Free Speech on Campus
• Books, Articles, and Further Reading
• Student Rights and Responsibilities
• Student Services and Resources
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Definitions and Background

• First Amendment: Freedom of Expression and Religion The National Constitution Center's overview of the First Amendment
• Freedom of Speech and Press: Exceptions to the First Amendment The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” This language restricts government’s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place.
• Intellectual Freedom: Hate Speech and Hate Crime (American Library Association) The First Amendment to the United States Constitution protects speech no matter how offensive its content. To be clear, the First Amendment does not protect behavior that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis.
• What Does Free Speech Mean? Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

Freedom of Speech in Debate

• Opposing Viewpoints in Context Freedom of speech is the right to express opinions and ideas without interference, censorship, or punishment by the government. It is one of the fundamental rights and liberties granted to the people of the United States under the First Amendment to the Constitution, along with freedom of religion, freedom of the press, the right to assemble peaceably, and the right to petition the government to address grievances. Speech is a form of expression, a broader term that covers seeking, receiving, and imparting information and ideas through verbal and written communication, visual art, music, dance, information technology, symbols, actions, and other means. more... less... Covers current social and cultural issues, and includes pro and con "viewpoint" essays, topic overviews, primary sources, and news articles.
• Can We Start Taking Political Correctness Now? Jonathan Chait's article in New York Magazine says that "political correctness is a system of thought that denies the legitimacy of political pluralism on issues of race and gender."
• Race and the Free-Speech Diversion Jelani Cobb's article in the New Yorker which says that "freedom to offend the powerful is not equivalent to the freedom to bully the relatively disempowered."
• Next: Free Speech on Campus >>
• Last Updated: Aug 1, 2023 8:19 AM
• URL: https://libraryguides.unh.edu/know-your-rights-free-speech

1000-Word Philosophy: An Introductory Anthology

Philosophy, One Thousand Words at a Time

Free Speech

Author: Mark Satta Category:  Social and Political Philosophy , Philosophy of Law , Ethics Word Count: 989

Want to criticize your government? Burn a flag? Wear a t-shirt that says f**k the draft?

Thanks to freedom of speech , in many places you can. [1]

But what exactly is freedom of speech? And what does it permit us to say? This essay will review some influential answers to these questions.

1. Protection from Government, Not Private Actors

Freedom of speech, sometimes called freedom of expression , is a legal right to express many beliefs and ideas without government interference or punishment. This freedom does not typically prevent private entities (e.g., ordinary citizens or private organizations) from limiting speech. [2]

If freedom of speech prevented private entities from limiting speech, freedom of speech could not be applied consistently because the freedom of speech includes the ability not to speak. [3] So, e.g., if a newspaper was forced to publish every piece of writing submitted to it, then that newspaper would lose some ability to not speak. Freedom of speech also includes the right not to listen to or receive other people’s messages. [4]  

The fact that freedom of speech only prevents government interference doesn’t entail that freedom of speech is irrelevant to action by private entities. Some argue that certain private entities ought to voluntarily conform to legal standards for speech protection: e.g., that private universities should conform to the free speech standards legally required by public universities. [5]  Freedom of speech is also sometimes understood more broadly as a social value.

2. Limits on Free Speech

Freedom of speech is not an unlimited right. All governments impose some limits on what kinds of speech they will protect. This is because freedom of speech, like all rights, must be balanced against other rights and values.

Common types of speech not protected by freedom of speech include threats of violence, false advertising, and defamation (i.e., false statements that unjustly harm someone’s reputation). [6]

Many democratic nations do not protect hate speech (i.e., speech intended to threaten, degrade, or incite hatred against a group or group member based on group prejudice). But some other nations, including the United States, treat hate speech as protected speech. Whether hate speech should receive free speech protection has been much debated in recent years. [7]

  But even protected speech can be limited to an extent by the government: e.g., freedom of speech does not permit just anyone to enter a military base or a class at a public university and start talking. This is true because, even though military bases and public universities are government-run, these spaces seek to achieve other important goals that justify limiting free speech.

Freedom of speech gives you much greater latitude in a public park, a public sidewalk, or in your own home. But even in public places like parks and sidewalks, freedom of speech allows for content-neutral restrictions on speech: e.g., a town can have a noise ordinance banning playing loud music in parks near residential neighborhoods after midnight.

But it is important that these restrictions be content- and viewpoint-neutral . [8] Thus, a town could not pass an ordinance limiting speech only about certain topics or from certain perspectives in the park. Such a rule would discriminate based on the content or viewpoint of the speech. An important part of freedom of speech is that the government cannot restrict speech just because it doesn’t like the topics or agree with the speaker. Freedom of speech also doesn’t allow for the suppression of ideas simply because those ideas are unpopular.

3. Expressive Conduct

Freedom of speech protects more than just spoken and written expression. It also protects many other activities through which ideas can be expressed: [9] e.g., in the United States, abstract art, non-lyrical music, and marching in a parade are all activities protected under the freedom of speech. [10]

There are controversies concerning which activities ought to be considered expressive conduct: e.g., there is substantial disagreement about whether political spending by corporations ought to be protected as free speech. [11] There are also disagreements about if and when the creation of products like wedding cakes and photographs ought to be considered protected speech. [12]

4. Prior Restraint versus Subsequent Punishment

Freedom of speech protects people against two different types of government interference: prior restraint and subsequent punishment .

A prior restraint prevents you from speaking: it restrains your speech prior to it being made. At one point, many legal scholars thought that freedom of speech meant only freedom from prior restraint. [13] That is no longer true.

Today, most everyone believes that freedom of speech protects people not only from prior restraint, but also from subsequent punishment (i.e., from being legally sanctioned for protected speech). This makes freedom of speech more robust because it protects people not only from having their protected speech restrained, but also from having their protected speech punished by the government.

5. Why is Free Speech Important?

Philosophers and legal scholars have given many different explanations for why free speech is important. Many scholars think there are multiple good reasons why we protect free speech. [14]

Three common rationales for free speech protections are that they help us (1) discover truth, (2) respect human autonomy, and (3) preserve democracy by allowing criticism of government.

Influential advocates of the idea that free speech helps us discover truth include writer John Milton, philosopher John Stuart Mill, and U.S. Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis. [15]

One common form of the truth discovery argument is that the best way to overcome false speech is with more speech. [16] Given what we know about how viral misinformation works, such a claim can appear implausible. [17] But even if this version of the truth discovery argument is mistaken, there may be weaker forms of a truth-preservation principle that provide us with good reason to safeguard free speech: e.g., someone might argue that the fallibility of political leaders requires them to avoid suppressing others’ ideas.

6. Conclusion

Freedom of speech is valuable. Protecting it first requires understanding it.

[1] See, e.g., Brandenburg v. Ohio , Texas v. Johnson , and Cohen v. California .

[2] See, e.g., U.S. Const. Amend I .

[3] Gaebler 1982 .

[4] Corbin 2009 .

[5] Chemerinsky and Gillman 2017 .

[6] Maras 2015 , Redish and Voils 2017 , and Post 1986 .

[7] See, e.g., Waldron 2012 and Strossen 2018 .

[8] Jacobs 2003 .

[9] Tushnet, Chen, and Blocher 2017 .

[10] See, e.g., Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston .

[11] Hasen 2011 .

[12] Liptak 2017 .

[13] Rabban 1981 , Healy 2013 .

[14] Greenawalt 1989 .

[15] Milton 1644 (reprinted 1918) , Mill 1859 , Abrams v. United States (Holmes, J. dissenting ), Whitney v. California (Brandeis, J. concurring) .

[16] See, e.g., Milton 1644 (reprinted 1918) , Whitney v. California (Brandeis, J. concurring) .

[17] Wu 2018 .

Abrams v. the United States , 250 U.S. 616 (1919).

Brandenburg v. Ohio , 395 U.S. 444 (1969).

Cohen v. California , 403 U.S. 15 (1971).

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston , 515 U.S. 557 (1995).

Texas v. Johnson , 491 U.S. 397 (1989).

Whitney v. California , 274 U.S. 357 (1927).

Corbin, Caroline Mala. 2009. “The First Amendment right against compelled listening.” Boston University Law Review , 89 (3): 939-1016.

Chemerinsky, Erwin and Howard Gillman. 2017. Free Speech on Campus . Yale University Press.

Gaebler, David. 1982. “First Amendment Protection Against Government Compelled Expression and Association.” Boston College Law Review , 23 (4): 995-1023.

Greenawalt, Kent. 1989. “Free Speech Justifications.” Columbia Law Review 89 (1): 119-155.

Hasen, Richard L. 2011. “Citizens United and the Illusion of Coherence.” Michigan Law Review , 109 (4): 581-623.

Healy, Thomas. 2013. The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America . Metropolitan Books.

Jacobs, Leslie Gielow. 2003. “Clarifying the Content-Based/Content Neutral and Content/Viewpoint Determinations.” McGeorge Law Review , 34 (3): 595-635 .

Liptak, Adam. 2017. “Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers.” New York Times .

Maras, Marie-Helen. 2015. “Unprotected Speech Communicated via Social Media: What Amounts to a True Threat?” Journal of Internet Law , 19 (3): 3-9.

Mill, John Stuart. 1859. On Liberty . John W. Parker & Son.

Milton, John. 1918. Areopagitica . Cambridge University Press.

Post, Robert C. 1986. “The Social Foundations of Defamation Law: Reputation and the Constitution” California Law Review , 74: 691-742.

Rabban, David M. 1981. “The First Amendment in Its Forgotten Years.” Yale Law Journal , 90 (3): 514-595.

Redish, Martin H. and Kyle Voils. 2017. “False Commercial Speech and the First Amendment: Understanding the Implications of the Equivalency Principle.” William & Mary Bill of Rights Journal , 25: 765-799.

Strossen, Nadine. 2018. Hate: Why We Should Resist it With Free Speech, Not Censorship . Oxford University Press.

Tushnet, Mark V., Alan K. Chen, and Joseph Blocher. 2017. Free Speech Beyond Words: The Surprising Reach of the First Amendment . New York University Press.

Waldron, Jeremy. 2012. The Harm in Hate Speech . Harvard University Press.

Wu, Tim. 2018. “Is the First Amendment Obsolete?” Michigan Law Review , 117 (3): 547-581.

For Further Reading

“Freedom of Expression – Speech and Press.” Cornell Law School’s Legal Information Institute.

van Mill, David, “Freedom of Speech”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.)  

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About the Author

Mark Satta is an Assistant Professor of Philosophy at Wayne State University in Detroit, Michigan. He received his PhD in Philosophy from Purdue University and his JD from Harvard Law School. Some of his philosophical research interests include philosophy of law, epistemology, bioethics, and philosophy of language. MarkSatta.com

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech.

Even though freedom of speech is protected from infringement by the government, the government is still free to restrict speech in certain circumstances. Some of these circumstances include:

• Obscenity and Indecency – In Alliance for Community Media v. FCC , the Supreme Court found that obscenity and child pornography have no right to protection from the First Amendment, and as such, the government has the ability to ban this media altogether. But when it comes to indecency, which is generally defined by the courts as something describing or depicting offensive sexual activity, the Supreme Court has found this speech protected. But the government can regulate this speech on radio and television, so long as it’s for a compelling reason and is done in the least restrictive manner. 
• Defamation – Private and public figures are able to sue someone for statements they have made. Public figures must prove that the person made the statement with malice , which means knowing the statement was false or having a reckless disregard for the truth or falsity of the statement. (See  New York Times v. Sullivan ) . Private figures must prove the person failed to act with reasonable care when they made the statement. 
• Incitement – If a person has the intention of inciting the violations of laws that is imminent and likely, while directing this incitement at a person or groups of persons, their speech will not be protected under the First Amendment. This test was created by the Supreme Court in Brandenburg v. Ohio . 
• Fighting words  

While the public has a right to freedom of speech when it comes to the U.S. government, the public does not have this right when it comes to private entities. Companies and private employers are able to regulate speech on their platforms and within their workplace since the First Amendment only applies to the government. This right allowed Facebook, Instagram, and Twitter to ban President Donald Trump from their sites in 2021 without legal repercussion. Companies like Facebook and YouTube were also able to ban misleading information on Covid-19 during the 2020 pandemic.

The Supreme Court recently affirmed that private entities are not restricted by the First Amendment in the case Manhattan Community Access Corporation v. Halleck . Manhattan Neighborhood Network is a nonprofit that was given the authority by New York City to operate public access channels in Manhattan. The organization decided to suspend two of their employees after they received complaints about a film the employees produced. The employees argued that this was a violation of their First Amendment freedom of speech rights because they were being punished due to the content of their film. The Supreme Court held that Manhattan Neighborhood Network was not a government entity or a state actor , so the nonprofit couldn’t be subjected to the First Amendment.

In another case, Nyabwa v. Facebook , the Southern District of Texas also affirmed that private entities are not subject to the First Amendment. There, the plaintiff had a Facebook account, which spoke on President Donald Trump’s business conflicts of interest. Facebook decided to lock the account, so the plaintiff was no longer able to access it. The plaintiff decided to sue Facebook because he believed the company was violating his First Amendment rights. The court dismissed the lawsuit stating that the First Amendment prevents Congress and other government entities from restricting freedom of speech, not private entities. 

[Last updated in June of 2021 by the Wex Definitions Team ] 

The Two Clashing Meanings of 'Free Speech'

Today’s campus controversies reflect a battle between two distinct conceptions of the term—what the Greeks called isegoria and parrhesia.

Little distinguishes democracy in America more sharply from Europe than the primacy—and permissiveness—of our commitment to free speech. Yet ongoing controversies at American universities suggest that free speech is becoming a partisan issue. While conservative students defend the importance of inviting controversial speakers to campus and giving offense, many self-identified liberals are engaged in increasingly disruptive, even violent, efforts to shut them down. Free speech for some, they argue, serves only to silence and exclude others. Denying hateful or historically “privileged” voices a platform is thus necessary to make equality effective, so that the marginalized and vulnerable can finally speak up—and be heard.

The reason that appeals to the First Amendment cannot decide these campus controversies is because there is a more fundamental conflict between two, very different concepts of free speech at stake. The conflict between what the ancient Greeks called isegoria , on the one hand, and parrhesia , on the other, is as old as democracy itself. Today, both terms are often translated as “freedom of speech,” but their meanings were and are importantly distinct. In ancient Athens, isegoria described the equal right of citizens to participate in public debate in the democratic assembly; parrhesia , the license to say what one pleased, how and when one pleased, and to whom.

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When it comes to private universities, businesses, or social media, the would-be censors are our fellow-citizens, not the state. Private entities like Facebook or Twitter, not to mention Yale or Middlebury, have broad rights to regulate and exclude the speech of their members. Likewise, online mobs are made up of outraged individuals exercising their own right to speak freely. To invoke the First Amendment in such cases is not a knock-down argument, it’s a non sequitur .

John Stuart Mill argued that the chief threat to free speech in democracies was not the state, but the “social tyranny” of one’s fellow citizens. And yet today, the civil libertarians who style themselves as Mill’s inheritors have for the most part failed to refute, or even address, the arguments about free speech and equality that their opponents are making .

The two ancient concepts of free speech came to shape our modern liberal democratic notions in fascinating and forgotten ways. But more importantly, understanding that there is not one, but two concepts of freedom of speech, and that these are often in tension if not outright conflict, helps explain the frustrating shape of contemporary debates, both in the U.S. and in Europe—and why it so often feels as though we are talking past each other when it comes to the things that matter most.

Of the two ancient concepts of free speech, isegoria is the older. The term dates back to the fifth century BCE, although historians disagree as to when the democratic practice of permitting any citizen who wanted to address the assembly actually began. Despite the common translation “freedom of speech,” the Greek literally means something more like “equal speech in public.” The verb agoreuein , from which it derives, shares a root with the word agora or marketplace—that is, a public place where people, including philosophers like Socrates, would gather together and talk.

In the democracy of Athens, this idea of addressing an informal gathering in the agora carried over into the more formal setting of the ekklesia or political assembly. The herald would ask, “Who will address the assemblymen?” and then the volunteer would ascend the bema , or speaker’s platform. In theory, isegoria meant that any Athenian citizen in good standing had the right to participate in debate and try to persuade his fellow citizens. In practice, the number of participants was fairly small, limited to the practiced rhetoricians and elder statesmen seated near the front. (Disqualifying offenses included prostitution and taking bribes.)

Although Athens was not the only democracy in the ancient world, from the beginning the Athenian principle of isegoria was seen as something special. The historian Herodotus even described the form of government at Athens not as demokratia , but as isegoria itself . According to the fourth-century orator and patriot Demosthenes, the Athenian constitution was based on speeches ( politeia en logois ) and its citizens had chosen isegoria as a way of life. But for its critics, this was a bug, as well as a feature. One critic, the so-called ‘Old Oligarch,’ complained that even slaves and foreigners enjoyed isegoria at Athens, hence one could not beat them as one might elsewhere.

Critics like the Old Oligarch may have been exaggerating for comic effect, but they also had a point: as its etymology suggests, isegoria was fundamentally about equality, not freedom. As such, it would become the hallmark of Athenian democracy, which distinguished itself from the other Greek city-states not because it excluded slaves and women from citizenship (as did every society in the history of humankind until quite recently), but rather because it included the poor . Athens even took positive steps to render this equality of public speech effective by introducing pay for the poorest citizens to attend the assembly and to serve as jurors in the courts.

As a form of free speech then, isegoria was essentially political. Its competitor, parrhesia , was more expansive. Here again, the common English translation “freedom of speech” can be deceptive. The Greek means something like “all saying” and comes closer to the idea of speaking freely or “frankly.” Parrhesia thus implied openness, honesty, and the courage to tell the truth, even when it meant causing offense. The practitioner of parrhesia (or parrhesiastes ) was, quite literally, a “say-it-all.”

Parrhesia could have a political aspect. Demosthenes and other orators stressed the duty of those exercising isegoria in the assembly to speak their minds. But the concept applied more often outside of the ekklesia in more and less informal settings. In the theater, parrhesiastic playwrights like Aristophanes offended all and sundry by skewering their fellow citizens, including Socrates, by name. But the paradigmatic parrhesiastes in the ancient world were the Philosophers, self-styled “lovers of wisdom” like Socrates himself who would confront their fellow citizens in the agora and tell them whatever hard truths they least liked to hear. Among these was Diogenes the Cynic , who famously lived in a barrel, masturbated in public, and told Alexander the Great to get out of his light—all, so he said, to reveal the truth to his fellow Greeks about the arbitrariness of their customs.

The danger intrinsic in parrhesia ’s offensiveness to the powers-that-be—be they monarchs like Alexander or the democratic majority—fascinated Michel Foucault, who made it the subject of a series of lectures at Berkeley (home of the original campus Free Speech Movement) in the 1980s. Foucault noticed that the practice of parrhesia necessarily entailed an asymmetry of power, hence a “contract” between the audience (whether one or many), who pledged to tolerate any offense, and the speaker, who agreed to tell them the truth and risk the consequences.

If isegoria was fundamentally about equality, then, parrhesia was about liberty in the sense of license —not a right, but rather an unstable privilege enjoyed at the pleasure of the powerful. In Athenian democracy, that usually meant the majority of one’s fellow citizens, who were known to shout down or even drag speakers they disliked (including Plato’s brother, Glaucon) off the bema . This ancient version of “no-platforming” speakers who offended popular sensibilities could have deadly consequences—as the trial and death of Socrates, Plato’s friend and teacher, attests.

Noting the lack of success that Plato’s loved ones enjoyed with both isegoria and parrhesia during his lifetime may help explain why the father of Western philosophy didn’t set great store by either concept in his works. Plato no doubt would have noticed that, despite their differences, neither concept relied upon the most famous and distinctively Greek understanding of speech as logos —that is, reason or logical argument. Plato’s student, Aristotle, would identify logos as the capacity that made human beings essentially political animals in the first place. And yet neither isegoria nor parrhesia identified the reasoned speech and arguments of logos as uniquely deserving of equal liberty or license. Which seems to have been Plato’s point—how was it that a democratic city that prided itself on free speech, in all of its forms, put to death the one Athenian ruled by logos for speaking it?

Unsurprisingly perhaps, parrhesia survived the demise of Athenian democracy more easily than isegoria . As Greek democratic institutions were crushed by the Macedonian empire, then the Roman, parrhesia persisted as a rhetorical trope. A thousand years after the fall of Rome, Renaissance humanists would revive parrhesia as the distinctive virtue of the counselor speaking to a powerful prince in need of frank advice. While often couched in apologetics, this parrhesia retained its capacity to shock. The hard truths presented by Machiavelli and Hobbes to their would-be sovereigns would inspire generations of “libertine” thinkers to come.

Still, there was another adaptation of the parrhesiastic tradition of speaking truth to power available to early modern Europeans. The early Christians took a page from Diogenes’s book in spreading the “good news” of the Gospel throughout the Greco-Roman world—news that may not have sounded all that great to the Roman authorities. Many of the Christians who styled themselves as “Protestants” after the Reformation thought that a return to an authentically parrhesiastic and deliberately offensive form of evangelism was necessary to restore the Church to the purity of “primitive” Christianity. The early Quakers, for example, were known to interrupt Anglican services by shouting down the minister and to go naked in public “for a sign.”

Isegoria , too, had its early modern inheritors. But in the absence of democratic institutions like the Athenian ekklesia , it necessarily took a different form. The 1689 English Bill of Rights secured “the freedom of speech and debates in Parliament,” and so applied to members of Parliament only, and only when they were present in the chamber. For the many who lacked access to formal political participation, the idea of isegoria as an equal right of public speech belonging to all citizens would eventually migrate from the concrete public forum to the virtual public sphere.

For philosophers like Spinoza and Immanuel Kant, “free speech” meant primarily the intellectual freedom to participate in the public exchange of arguments. In 1784, five years before the French Revolution, Kant would insist that “the freedom to make public use of one’s reason” was the fundamental and equal right of any human being or citizen. Similarly, when Mill wrote On Liberty less than a century later, he did not defend the freedom of speech as such, but rather the individual “freedom of thought and discussion” in the collective pursuit of truth. While the equal liberty of isegoria remained essential for these thinkers, they shifted focus from actual speech —that is, the physical act of addressing others and participating in debate—to the mental exercise of reason and the exchange of ideas and arguments, very often in print. And so, over the course of two millennia, the Enlightenment finally united isegoria and logos in an idealized concept of free speech as freedom only for reasoned speech and rational deliberation that would have made Plato proud.

This logo-centric Enlightenment ideal remains central to the European understanding of free speech today. Efforts in Europe to criminalize hate speech owe an obvious debt to Kant, who described the freedom of (reasoned) speech in public as “the most harmless” of all. The same could never be said of ancient or early modern parrhesia , which was always threatening to speakers and listeners alike. Indeed, it was the obvious harm caused by their parrhesiastic evangelism to their neighbors’ religious sensibilities that led so many evangelical Protestants to flee prosecution (or persecution, as they saw it) in Europe for the greater liberty—or license—of the New World. American exceptionalism can thus be traced all the way back to the seventeenth and eighteenth centuries: while America got the evangelicals and libertines, Europe kept the philosophers.

Debates about free speech on American campuses today suggest that the rival concepts of isegoria and parrhesia are alive and well. When student protesters claim that they are silencing certain voices—via no-platforming, social pressure, or outright censorship—in the name of free speech itself, it may be tempting to dismiss them as insincere, or at best confused. As I witnessed at an event at Kenyon College in September, when confronted with such arguments the response from gray-bearded free-speech fundamentalists like myself is to continue to preach to the converted about the First Amendment, but with an undercurrent of solidaristic despair about “kids these days” and their failure to understand the fundamentals of liberal democracy.

No wonder the “kids” are unpersuaded. While trigger warnings, safe spaces, and no-platforming grab headlines, poll after poll suggests that a more subtle, shift in mores is afoot. To a generation convinced that hateful speech is itself a form of violence or “silencing,” pleading the First Amendment is to miss the point. Most of these students do not see themselves as standing against free speech at all. What they care about is the equal right to speech, and equal access to a public forum in which the historically marginalized and excluded can be heard and count equally with the privileged. This is a claim to isegoria , and once one recognizes it as such, much else becomes clear—including the contrasting appeal to parrhesia by their opponents, who sometimes seem determined to reduce “free speech” to a license to offend.

Recognizing the ancient ideas at work in these modern arguments puts those of us committed to America’s parrhesiastic tradition of speaking truth to power in a better position to defend it. It suggests that to defeat the modern proponents of isegoria— and remind the modern parrhesiastes what they are fighting for—one must go beyond the First Amendment to the other, orienting principle of American democracy behind it, namely equality . After all, the genius of the First Amendment lies in bringing isegoria and parrhesia together, by securing the equal right and liberty of citizens not simply to “exercise their reason” but to speak their minds. It does so because the alternative is to allow the powers-that-happen-to-be to grant that liberty as a license to some individuals while denying it to others.

In contexts where the Constitution does not apply, like a private university, this opposition to arbitrariness is a matter of culture, not law, but it is no less pressing and important for that. As the evangelicals, protesters, and provocateurs who founded America’s parrhesiastic tradition knew well: When the rights of all become the privilege of a few, neither liberty nor equality can last.

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What is the role of free speech in a democratic society?

Book co-edited by prof. geoffrey stone examines evolution, future of first amendment.

Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in  Abrams v. United States , one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.

That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America. 

The Free Speech Century  (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.

“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”

Stone, JD’71, has spent much of his career examining free speech— a topic he first became passionate about as a University of Law School student.

The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,  New York Times Co. v. United States.  The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the  New York Times  and  Washington Post  to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.

But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”

—Adapted from an article that first appeared on the University of Chicago Law School website.

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Home — Essay Samples — Social Issues — Human Rights — Freedom of Speech

Argumentative Essays on Freedom of Speech

Freedom of speech essay topic examples, argumentative essays.

Argumentative essays on freedom of speech require you to take a stance on a specific aspect of this topic and provide evidence to support your viewpoint. Consider these topic examples:

• 1. Argue for the importance of protecting hate speech as a form of free expression, emphasizing the principles of free speech and the potential consequences of limiting it.
• 2. Debate the ethical implications of social media platforms censoring or moderating content, exploring the balance between maintaining a safe online environment and upholding free speech rights.

Example Introduction Paragraph for an Argumentative Freedom of Speech Essay: Freedom of speech is a cornerstone of democratic societies, but it often challenges our notions of what should be protected. In this argumentative essay, we will examine the importance of safeguarding hate speech as a form of free expression, exploring the principles of free speech and the potential ramifications of its restriction.

Example Conclusion Paragraph for an Argumentative Freedom of Speech Essay: In conclusion, the argument for protecting hate speech within the bounds of free expression highlights the enduring principles of democracy and free speech. As we navigate these complex debates, we must remain committed to preserving the foundations of our democratic society.

Compare and Contrast Essays

Compare and contrast essays on freedom of speech involve analyzing the similarities and differences between various aspects of free speech laws, practices, or the historical development of free speech rights in different countries. Consider these topics:

• 1. Compare and contrast the approach to freedom of speech in the United States and European Union, examining the legal frameworks, historical context, and key differences in their protection of free expression.
• 2. Analyze the evolution of freedom of speech in the digital age, comparing the challenges and opportunities presented by online platforms and the traditional forms of free expression.

Example Introduction Paragraph for a Compare and Contrast Freedom of Speech Essay: Freedom of speech varies across different countries and contexts, raising questions about the boundaries of this fundamental right. In this compare and contrast essay, we will explore the approaches to freedom of speech in the United States and the European Union, shedding light on their legal frameworks, historical backgrounds, and notable distinctions.

Example Conclusion Paragraph for a Compare and Contrast Freedom of Speech Essay: In conclusion, the comparison and contrast of freedom of speech in the United States and the European Union reveal the multifaceted nature of this fundamental right. As we examine these diverse perspectives, we gain a deeper appreciation for the complexities surrounding free expression in our globalized world.

Descriptive Essays

Descriptive essays on freedom of speech allow you to provide detailed accounts and analysis of specific instances, historical events, or contemporary debates related to free speech. Here are some topic ideas:

• 1. Describe a landmark Supreme Court case related to freedom of speech, such as the "Tinker v. Des Moines Independent Community School District" case, and its significance in shaping free speech rights for students.
• 2. Paint a vivid picture of a recent protest or demonstration where freedom of speech played a central role, discussing the motivations of the protesters, the public's response, and the outcomes of the event.

Example Introduction Paragraph for a Descriptive Freedom of Speech Essay: Freedom of speech is often tested and defined in the courtroom and in the streets. In this descriptive essay, we will delve into the landmark Supreme Court case "Tinker v. Des Moines Independent Community School District" and its profound impact on the free speech rights of students within the educational system.

Example Conclusion Paragraph for a Descriptive Freedom of Speech Essay: In conclusion, the descriptive exploration of the "Tinker" case illustrates the enduring struggle to balance students' free speech rights with the need for a productive educational environment. As we reflect on this historical event, we are reminded of the ongoing challenges in preserving and defining freedom of speech in schools.

Persuasive Essays

Persuasive essays on freedom of speech involve advocating for specific actions, policies, or changes related to the protection or limitations of free speech rights. Consider these persuasive topics:

• 1. Persuade your audience of the importance of enacting legislation to combat "cancel culture" and protect individuals' right to express unpopular opinions without fear of social or professional consequences.
• 2. Advocate for greater transparency and accountability in social media content moderation practices, highlighting the potential impact on free speech and the public's right to access diverse information.

Example Introduction Paragraph for a Persuasive Freedom of Speech Essay: The boundaries of free speech are continually tested in our rapidly changing society. In this persuasive essay, I will make a compelling case for the necessity of legislation to combat "cancel culture" and preserve individuals' right to express dissenting views without facing severe social or professional repercussions.

Example Conclusion Paragraph for a Persuasive Freedom of Speech Essay: In conclusion, the persuasive argument for legislation against "cancel culture" underscores the importance of safeguarding free speech in the face of societal pressures. As we advocate for change, we contribute to the preservation of a diverse and inclusive marketplace of ideas.

Narrative Essays

Narrative essays on freedom of speech allow you to share personal stories, experiences, or observations related to free speech, your encounters with debates or controversies, or the impact of free expression on your life. Explore these narrative essay topics:

• 1. Narrate a personal experience where you exercised your right to free speech, detailing the circumstances, motivations, and reactions from others, and reflecting on the significance of your actions.
• 2. Share a story of your involvement in a community or online discussion where freedom of speech played a central role, emphasizing the challenges and rewards of engaging in open dialogue.

Example Introduction Paragraph for a Narrative Freedom of Speech Essay: Freedom of speech is not just an abstract concept; it is a lived experience. In this narrative essay, I will take you through a personal journey where I exercised my right to free speech, recounting the circumstances, motivations, and the impact of my actions on those around me.

Example Conclusion Paragraph for a Narrative Freedom of Speech Essay: In conclusion, the narrative of my personal experience with free speech highlights the transformative power of open dialogue and individual expression. As we share our stories, we contribute to the rich tapestry of voices that define our commitment to this essential democratic principle.

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A Study of The True Meaning of Free Speech in Today's Society

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Freedom of speech is a fundamental human right that encompasses the liberty to express thoughts, opinions, beliefs, and ideas without fear of censorship, reprisal, or governmental interference.

1. The right to seek information and ideas; 2. The right to receive information and ideas; 3. The right to impart information and ideas.

The concept of freedom of speech has deep historical roots, originating from ancient civilizations and evolving through various historical contexts. The ancient Greeks, particularly in Athens, valued free expression and public debate, considering it essential for democratic governance. Similarly, the Roman Republic allowed citizens the freedom to express their opinions in political matters. The modern understanding of freedom of speech emerged during the Age of Enlightenment in the 17th and 18th centuries. Prominent thinkers like John Locke and Voltaire advocated for the right to express ideas without censorship or persecution. Their ideas influenced the development of democratic societies and the recognition of freedom of speech as a fundamental human right. The historical context of freedom of speech also includes pivotal moments, such as the American Revolution and the French Revolution. These revolutions challenged the existing oppressive regimes and led to the inclusion of free speech protections in their respective declarations of rights. Since then, the concept of freedom of speech has been enshrined in numerous international human rights documents, such as the Universal Declaration of Human Rights and the First Amendment to the United States Constitution.

The freedom of speech is a fundamental right protected by the First Amendment of the United States Constitution. It guarantees individuals the right to express their opinions, beliefs, and ideas without fear of government censorship or retaliation. The historical context of freedom of speech in the US can be traced back to the country's founding. The American Revolution and the subsequent establishment of the Constitution were driven by a desire for individual liberties, including the right to freely express oneself. Over the years, the interpretation and application of freedom of speech in the US have been shaped by landmark court cases. For instance, in the 1960s, the Supreme Court ruled in favor of protecting political and symbolic speech, even if it was controversial or dissenting. This period also saw the rise of the free speech movement, which advocated for greater rights on college campuses. However, the freedom of speech in the US is not absolute. Certain types of speech, such as obscenity, defamation, incitement to violence, and hate speech, are subject to limitations and can be legally restricted.

Thomas Jefferson: As one of the Founding Fathers of the United States, Jefferson was a staunch advocate for freedom of speech. He believed that a free exchange of ideas was vital for a democratic society and emphasized its protection in the First Amendment. Voltaire: A French philosopher and writer, Voltaire championed the principles of free expression and tolerance. His writings challenged oppressive regimes and promoted the idea that individuals should have the right to speak their minds without fear of persecution. Martin Luther King Jr.: Known for his leadership in the American civil rights movement, King passionately defended free speech as a means to advocate for social justice. His powerful speeches and peaceful protests were instrumental in promoting equality and challenging systemic racism. John Stuart Mill: An influential philosopher and political economist, Mill articulated the concept of the "marketplace of ideas" and argued for unrestricted freedom of speech. He believed that through open and robust debate, society could discover the truth and prevent the suppression of minority viewpoints.

Public opinion on the freedom of speech varies widely, reflecting the diversity of perspectives within societies around the world. While many individuals staunchly uphold the value and importance of free speech as a fundamental human right, others harbor concerns and reservations regarding its boundaries and potential consequences. Additionally, cultural and societal factors significantly shape public opinion on freedom of speech. Different countries and communities may have distinct historical experiences, cultural norms, and legal frameworks that influence their perspectives. The balance between individual freedoms and collective well-being may vary across societies, leading to differing opinions on where the boundaries of free speech should lie. Technological advancements and the rise of social media platforms have further complicated public opinion on freedom of speech. The digital age has enabled individuals to express their views on a global scale, amplifying the impact and reach of their words. However, it has also highlighted concerns about online harassment, the spread of misinformation, and the potential for manipulation and abuse of free speech rights. As a result, debates emerge around the role of platforms in regulating speech and ensuring the responsible use of online communication tools.

1. Protection of democratic principles 2. Advancement of knowledge and progress 3. Promotion of individual autonomy 4. Protection of minority rights 5. Defense against tyranny

1. Harmful and hateful speech 2. Protection of vulnerable groups 3. Misinformation and propaganda 4. Privacy and dignity 5. Societal stability and public safety

1. The recognition of speech protection can be traced back to the signing of the Magna Carta in 1215, marking an early milestone in safeguarding the freedom of expression. 2. In 399 BC, the renowned Greek philosopher Socrates faced persecution for his advocacy of unrestricted speech, showcasing the historical roots of the ongoing struggle for free speech rights. 3. A significant majority, approximately 70% of Americans, believe in the importance of granting individuals the right to free speech, even if their words are deemed highly offensive or controversial. 4. A pivotal moment for student rights came in 1969 with the Supreme Court case Tinker v. Des Moines, which affirmed that students maintain their right to free speech even within the confines of school hours.

The topic of freedom of speech is of immense importance for writing an essay due to its fundamental role in society. Freedom of speech is a cornerstone of democracy, enabling individuals to express their opinions, ideas, and beliefs openly without fear of censorship or retribution. It serves as a catalyst for societal progress, allowing for the exchange of diverse perspectives, critical thinking, and the challenging of established norms. Exploring the concept of freedom of speech in an essay provides an opportunity to delve into its historical significance and the ongoing struggles for its protection. It allows for an examination of the complex balance between free expression and the limitations necessary to prevent harm or hate speech. Additionally, discussing the importance of freedom of speech facilitates a deeper understanding of its role in fostering social justice, political discourse, and the protection of minority voices. Moreover, the topic invites exploration of contemporary issues such as online censorship, fake news, and the challenges posed by the digital age. By analyzing case studies, legal frameworks, and international perspectives, an essay on freedom of speech can shed light on the ongoing debates, dilemmas, and potential solutions to ensure its preservation in an ever-evolving society.

1. Sullivan, K. M. (2010). Two concepts of freedom of speech. Harvard Law Review, 124(1), 143-177. (https://www.jstor.org/stable/20788316) 2. Van Mill, D. (2002). Freedom of speech. (https://plato.stanford.edu/ENTRIES/freedom-speech/) 3. Bogen, D. (1983). The origins of freedom of speech and press. Md. L. Rev., 42, 429. (https://heinonline.org/HOL/LandingPage?handle=hein.journals/mllr42&div=20&id=&page=) 4. Yong, C. (2011). Does freedom of speech include hate speech?. Res Publica, 17, 385-403. (https://link.springer.com/article/10.1007/s11158-011-9158-y) 5. McHugh, M. R. (2004). Historiography and freedom of speech: the case of Cremutius Cordus. In Free Speech in Classical Antiquity (pp. 391-408). Brill. (https://brill.com/display/book/edcoll/9789047405689/B9789047405689-s018.xml) 6. Milo, D. (2008). Defamation and freedom of speech. (https://academic.oup.com/book/2591) 7. Helwig, C. C. (1998). Children's conceptions of fair government and freedom of speech. Child Development, 69(2), 518-531. (https://srcd.onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-8624.1998.tb06205.x) 8. Cheung, A. S. (2011). Exercising freedom of speech behind the great firewall: A study of judges’ and lawyers’ blogs in China. Harvard International Law Journal Online. (https://harvardilj.org/wp-content/uploads/sites/15/2011/04/HILJ-Online_52_Cheung1.pdf) 9. Nieuwenhuis, A. (2000). Freedom of speech: USA vs Germany and Europe. Netherlands Quarterly of Human Rights, 18(2), 195-214. (https://journals.sagepub.com/doi/pdf/10.1177/092405190001800203)

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Research & Learn

Table of contents, free speech essay contest.

The Details

The contest may return in 2024. Check back for updates.

Eligibility

Open to juniors and seniors in U.S. high schools, including home-schooled students, as well as U.S. citizens attending high school overseas. Additional questions regarding eligibility may be emailed to [email protected] .

Word Length

Students must submit an essay between 700 and 900 words on the provided topic below.

FIRE must receive all entries by 11:59 EST, December 31, 2021. Winners will be announced by February 15, 2022.

Scholarship Prizes

One $10,000 first prize, one $5,000 second prize, three $1,000 third place prizes and four $500 prizes will be awarded.

Before You Start

Get to know us! The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech , legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. In addition to defending the rights of students and faculty, FIRE works to educate students and the general public on the necessity of free speech and its importance to a thriving democratic society.

The freedom of speech, enshrined in the First Amendment to the Constitution, is a foundational American right. Nowhere is that right more important than on our college campuses, where the free flow of ideas and the clash of opposing views advance knowledge and promote human progress. It is on our college campuses, however, where some of the most serious violations of free speech occur, and where students are regularly censored simply because their expression might offend others.

We also encourage you to take advantage of our other educational resources , including our First Amendment Library , our continually-updated Newsdesk , our K-12 Video Library , and our many publications , including our Guide to Free Speech on Campus .

In a persuasive letter or essay, convince your peers that free speech is a better idea than censorship.

Your letter or essay must be between 700-900 words. We encourage you to draw from current events, historical examples, our free speech comic , other resources on FIRE’s website , and/or your own personal experiences.

Note: While there is no required format for your submission, many entrants use MLA guidelines. Successful entries will show an understanding of the importance of free speech and the pitfalls of censorship. You may use in-text citations, and do not need to include a References or Works Cited page. Essays that do not address the prompt question or fail to meet the word-count requirements will not be considered. View the essays of some of our past winners here !

Entering this essay contest constitutes agreement to having your name and essay published on FIRE's website if you are selected as a winner. FIRE reserves the right to make minor edits to winning essays before publication on our website.

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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.

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Free Speech, the First Amendment, and Parrhesia

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No one has done more to shape legal interpretation of the first amendment than Floyd Abrams. Yet when Abrams litigated Citizens United, some proponents of free speech thought that this just gave big money the biggest voice. By contrast in ancient democratic Athens, parrhesia , free and frank speech, was thought to give voice to citizens who lacked power. Join Floyd Abrams , Matt Landauer and Yael Melamede in a conversation about the value of public speech and the relationship between free speech, equality and power, then and now. We will be screening excerpts from Yael Melamede’s 2023 documentary Floyd Abrams: Speaking Freely.

Organized by the Center for Hellenic Studies and the department of the Classics, Harvard University.

• Center for Hellenic Studies, Harvard University
• Department of Classics, Harvard University