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Upgraded synchrotron starts up at argonne national laboratory, 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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The Free Speech Century

Geoffrey R. Stone, Lee C. Bollinger

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

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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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Democracy & justice, why is freedom of speech important in a democracy: 5 reasons, why is freedom of speech important why is it a core principle in a democracy how is it being threatened how do we protect it, by eleanor brooks.

Updated on 21.05.2024 by Una Glatz Knowledge is power. Your contribution counts.

What is freedom of speech?

Freedom of speech is one of the core pillars upholding the democratic process and protecting it is essential if we want to live in a society that is fair and equal for everyone. Failing to do so weakens democracy.

Every time you share a news story on your social media channel, attend a protest, or write to your local politician about an issue you care about, this is free speech in action. Not just any speech is considered free speech. For example, having an argument around the dinner table about whether or not to eat your vegetables is not considered free speech.

We all deserve to have our say

But it is becoming harder to speak up about the issues we care about. Support Liberties standing up for our right to free speech.

Free speech gives us our voice

Free speech exists when citizens can express their opinion – including views that are critical towards the government - without fearing negative consequences, such as being put into prison or receiving threats of violence.

In 2000 freedom of expression was enshrined as a fundamental right in Article 11 of the Charter of Fundamental Rights of the European Union:

• Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
• The freedom and pluralism of the media shall be respected.

However, the definition of free speech does not protect every kind of speech. Like all fundamental rights the right to freedom of expression is not absolute, meaning it can be subject to limitations provided they have a legal basis. The limitations must meet two conditions: 1) they are proportional - the limitations are no stronger than needed to achieve their aim 2) they are necessary and genuinely fulfill objectives in the interest of the general public or are needed to protect the rights and freedoms of others.

Therefore, someone who engages in criminalised forms of speech such as hate speech, terrorist content or child pornography cannot defend themselves by relying on their right to freedom of expression.

Why is freedom of speech important in a democracy? Why is it a core principle?

Democracy’s goal is to have a plural and tolerant society. For this to happen successfully, citizens should be able to speak freely and openly about how they would like to be governed and criticize those who are in power.

This exchange of ideas and opinions isn’t just a once off on election day, rather it is an on-going two-way communication which happens throughout a government’s term.

1. It battles for the truth

To enable citizens to make meaningful decisions about how they want society to function, they need access to truthful and accurate information about a wide variety of topics. This can only happen if people feel safe vocalizing the issues affecting their communities.

Safeguarding freedom of speech encourages people to speak out, which makes it easier to tackle systemic issues from the inside. This deters people from abusing their power, which helps everyone in the long run.

2. It makes everyone more accountable

When it comes to elections, citizens are given the opportunity to hold their politicians accountable. In order to decide who to vote for, they need to understand how well a political party has performed while in power and whether or not they fulfilled their election promises.

By reporting on society’s most pressing social issues, media outlets and civil society organisations (CSOs) contribute to the public’s perception of how well the government is doing. However, this is only helpful if they are free to truthfully cover stories that are critical of the state.

3. Active participation of citizens

Elections and referendums are a good opportunity for citizens to shape the direction of society, but they only come round every couple of years.

Free speech reinforces other fundamental rights such as freedom of assembly, which citizens exercise to influence public decision-making by attending protests, demonstrations or participating in campaigns.

This allows them to protest an unpopular decision, such as the ban on abortion in Poland, or show the government they want stronger political action on an important issue. When protestors in Germany filled the streets in their hundreds of thousands protesting the war in Ukraine, this sent a strong message to the government that the people supported strong sanctions against Russia.

A more recent positive example of the effects freedom of assembly and active participation has, can be seen in Poland. The opposition was able to rally political participation through large pro-democratic protests before the election in October of 2023 . Their subsequent win ousted the PiS, which was systematically dismantling principles of democracy in Poland. This shows how exercising the right to freedom of assembly and free speech helped save Poland's declining democracy.

4. Promotes equal treatment of minorities

In a democratic society everyone should be treated equally and fairly. However, minority groups who are underrepresented in government are often side-lined, and their opinions' neglected in favour of those belonging to the dominant social group.

By campaigning and speaking openly about the issues faced by their communities, marginalized people can gain widespread public support for their cause. This increases their ability to influence public agenda-setting and put an end to human rights abuses.

Speaking up starts with getting informed.

5. necessary for change and innovation.

We all want society to become better for everyone, but for that to happen society’s need to encourage and foster freedom of expression. Authoritarian governments who suppress criticism and withhold public interest information deny citizens the right to make informed decisions or take action about important social issues.

Concealing vital intelligence causes problems to fester and worsen. This hinders progress and makes finding a solution much harder when the issue finally comes to light.

For example in China, the doctor who attempted to warn the medical community of a deadly virus – Covid-19 – was told to "stop making false comments" and was investigated for "spreading rumours". This had the devastating effect of delaying the introduction of measures to contain Covid-19, which resulted in a global pandemic and millions of deaths.

How is freedom of speech being threatened?

1.government.

Authoritarian governments whose primary aim is to stay in power want to ensure that any media coverage is favourable. In order to control the public narrative, they appoint political figures to media authorities and exercise financial and editorial control over mainstream media outlets. As reported by our member organization in our 2022 Media Freedom Act . Hungary is an egregious example of this where over 80% of the media market is controlled directly or indirectly by the Hungarian government.

Governments use restrictive legal reforms, crowd control by police or exceptional emergency measures to curb freedom of expression.

As an emergency response during the Covid-19 pandemic countries such as Belgium, Bulgaria, Germany, Slovenia and Spain disproportionately curtailed exercise of the right to protest in the interest of public health through heavy-handed policing and the arrest of activists.

Other legal tools used by the state to control the flow of information is to criminalize the spread of false information or deny access to information.

In Russia, the invasion of Ukraine is referred to by Putin as a “military operation” and it is understood amongst Russians that using the word ‘war’ will put them afoul of the “fake news” laws which could land them with a prison sentence of up to 15 years. As a result, many Russians who oppose the war are cowed into silence, while others aren’t aware of the truth of what is happening.

3.Attacks on journalists, CSOs and Whistleblowers

Politicians and powerful figures who fear journalists will expose their corrupt behaviour resort to dirty, extra-legal tactics to silence them. Common strategies include legal harassment through SLAPPs (strategic lawsuits) or smear campaigns aimed at discrediting critical CSOs .

Whistleblowers have faced devastating personal consequences for shedding light on activities against the public’s interest such as corruption, illegal activities or malpractice.

Journalists and civil rights defenders are also increasingly in danger of verbal or physical violence, including by police.

Hate speech or online trolling can create a hostile digital environment which discourages women and margainlized people from participating in online social debates.

However, well-intentioned efforts to tackle this issue can inadvertently create the same silencing effects.

The European Union is currently pushing through the Digital Services Act , aimed at making the internet a safer place and protecting freedom of expression online. However, its proposed solution to stamp out disinformation could do the opposite. In our letter to MEPs we advised against the mandatory use of upload filters to remove harmful online content, as they are not sophisticated enough to distinguish between humour and abuse. If used, they could limit free speech online.

5. Self-censorship

When freedom of speech is under attack, it sends the message that telling the truth can put you in danger. The ambiguity that exists around what is acceptable or not leads people to tread with caution, so they begin to self-censor . Our 2022 Media Freedom Report found that journalists in Bulgaria, Germany, Hungary, Italy, Slovenia and Sweden were self-censoring due to online attacks or harassment.

How to protect freedom of speech?

In order to safeguard free speech, there should be laws in place which protect individuals and organisations who are threatened for exposing corruption or unethical behaviour. Journalists, watchdogs, activists and whistleblowers should be given robust legal protection which enables them to carry out their work safely and shields them from retaliation from those seeking to silence them.

This is why Liberties is working hard to campaign for better laws to safeguard media freedom. The Media Freedom Act (MFA) currently being drafted by the European Commission has the potential to make a real difference. We sent the Commission our Media Freedom Report auditing the state of media freedom in 15 EU countries, as well as a policy paper outlining recommendations which we believe the MFA should address. It should include measures to further transparency in media ownership and elaborate on rules on how to make journalistic work more safe.

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freedom of speech

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freedom of speech , right, as stated in the 1st and 14th Amendments to the Constitution of the United States , to express information, ideas, and opinions free of government restrictions based on content. A modern legal test of the legitimacy of proposed restrictions on freedom of speech was stated in the opinion by Oliver Wendell Holmes, Jr. in Schenk v. U.S. (1919): a restriction is legitimate only if the speech in question poses a “clear and present danger”—i.e., a risk or threat to safety or to other public interests that is serious and imminent . Many cases involving freedom of speech and of the press also have concerned defamation , obscenity , and prior restraint ( see Pentagon Papers ). See also censorship .

Free Speech

Protecting free speech means protecting a free press, the democratic process, diversity of thought, and so much more. The ACLU has worked since 1920 to ensure that freedom of speech is protected for everyone.

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“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.”

—U.S. Supreme Court Justice Benjamin N. Cardozo in Palko v. Connecticut

Freedom of speech, the press, association, assembly, and petition: This set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. It is the foundation of a vibrant democracy, and without it, other fundamental rights, like the right to vote, would wither away.

The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. The organization’s work quickly spread to combating censorship, securing the right to assembly, and promoting free speech in schools.

Almost a century later, these battles have taken on new forms, but they persist. The ACLU’s Speech, Privacy, and Technology Project continues to champion freedom of expression in its myriad forms — whether through protest, media, online speech, or the arts — in the face of new threats. For example, new avenues for censorship have arisen alongside the wealth of opportunities for speech afforded by the Internet. The threat of mass government surveillance chills the free expression of ordinary citizens, legislators routinely attempt to place new restrictions on online activity, and journalism is criminalized in the name of national security. The ACLU is always on guard to ensure that the First Amendment’s protections remain robust — in times of war or peace, for bloggers or the institutional press, online or off.

Over the years, the ACLU has represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

Some examples of our free speech work from recent years include:

• In 2019, we filed a petition of certiorari on behalf of DeRay Mckesson, a prominent civil rights activist and Black Lives Matter movement organizer, urging the Supreme Court to overturn a lower court ruling that, if left standing, would dismantle civil rights era speech protections safeguarding the First Amendment right to protest.
• In 2019, we successfully challenged a spate of state anti-protest laws aimed at Indigenous and climate activists opposing pipeline construction.
• We’ve called on big social media companies to resist calls for censorship.
• We’re representing five former intelligence agency employees and military personnel in a lawsuit challenging the government’s pre-publication review system, which prohibits millions of former intelligence agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval.
• In 2018, we filed a friend-of-the-court brief arguing that the NRA’s lawsuit alleging that the state of New York violated its First Amendment rights should be allowed to proceed.
• In 2016, the we defended the First Amendment rights of environmental and racial justice activists in Uniontown, Alabama, who were sued for defamation after they organized against the town’s hazardous coal ash landfill.
• In 2014, the ACLU of Michigan filed an amicus brief arguing that the police violated the First Amendment by ejecting an anti-Muslim group called Bible Believers from a street festival based on others’ violent reactions to their speech.

Today, years of hard-fought civil liberty protections are under threat.

To influence lawmakers, we need everyone to get involved. Here is 1 action you can take today:

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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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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.

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Remembering why free speech is important

At a time when freedom of speech seems to be under assault , it’s worth stepping back to reconsider why it matters.

In a free society, all citizens must be able to pursue their own paths, set their own goals, and think for themselves. Of course, in America and elsewhere, there are norms, orthodoxies, and taboos. And dissident personalities frequently challenge these norms by eschewing orthodoxy and venturing into the taboo.

How a society treats these dissidents can tell you a lot about how truly free that society is. In some places, government silences or punishes those with unpopular viewpoints for refusing to sacrifice their independence and their ideas (the recent protests in Hong Kong are an instructive example).

America offers a richer tradition. People are free to express their ideas , even if those ideas are unpopular, unconventional, or wrong (though, in many cases, they may eventually be proven right). Americans are thus free to participate in peaceful protests, wear black armbands to school, and even burn the nation’s flag . A speaker may say things that are unpopular, uncomfortable, or downright grotesque. But in a free society, we engage dissent through discussion and debate rather than through censorship and punishment.

Free speech is inextricably linked to prosperity. After all, prosperity comes from ideas, and new ideas can thrive only in a society in which they are free from suppression. It’s easy to think of widely embraced ideas that were once controversial—for example, the idea that all children, regardless of race, should have the same educational opportunities . Thanks to our tradition of free speech, such forward-looking ideas reshaped our society for the better.

Today it is more important than ever to protect our freedom of speech. Too many people have come to believe that discussion and debate are inadequate; they seek a society that squelches dissent with force. In law, government regulations are censoring speech that is “ disparaging ,” “ immoral ,” and “ offensive .”

In culture, people attack the speaker rather than engaging their ideas. Opponents vilify speakers as “misogynists,” or “racists,” and then attempt to drive them from the public square, or deprive them of their livelihood. In worst-case scenarios, disagreeable speech is met with violence. These attacks on the tradition of free speech are damaging to a free society and suppress uninhibited, robust, and wide open debate.

Freedom of speech is an invaluable cornerstone of a free society—and it’s worth fighting to protect.

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• Amnesty International UK / Issues

What is freedom of speech?

'Freedom of speech is the right to seek, receive and impart information and ideas of all kinds, by any means.'

Is freedom of speech a human right?

In the UK, Article 10 of the 1998 Human Rights Act protects our right to freedom of expression:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Are freedom of speech and freedom of expression the same thing? In the UK, freedom of speech is legally one part of the wider concept of freedom of expression.

Does freedom of speech have limits?

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The Importance of Freedom of Speech

Post by: Katrina Sumner

The preamble to the Universal Declaration of Human Rights notes that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”

The truth of this statement regarding barbarous acts was demonstrated again last week by the beheading of a beloved history teacher in Paris. The teacher was killed in broad daylight near his school in what appears to be retaliation for a lesson he taught on freedom of speech. French President Macron said the teacher was murdered, “for teaching students freedom of expression, the freedom to believe or not believe.” His murder has shocked and outraged thousands who took to the streets all across France to express their support for the slain educator.

The teacher’s murder is yet another example of why the freedom of speech is to be cherished and protected. While it is important for nations to safeguard freedom of speech, it is also important that individuals recognize that others have the right to speak freely without being subjected to violence or death.

Sometimes people speak disparagingly about freedom of speech as if it is no longer to be cherished. This liberty is as precious today as it ever has been. It is encouraging to see nations take steps to secure liberties like the freedom of expression and the freedom of belief to their people. For example, in July 2020, Sudan repealed its apostasy laws making the changing of one’s religion no longer a death penalty offense in that country.

Freedom of speech is an important human right. People should not have to live in fear of death for exercising it. Our goal as individuals should be to embrace our own right to freedom of expression while respecting that others have this right, as well.

This post was written by a Center for Global Justice  Student Staff member . The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.

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A drawing by French cartoonist t0ad

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Freedom of expression is a fundamental human right. It reinforces all other human rights, allowing society to develop and progress. The ability to express our opinion and speak freely is essential to bring about change in society.

Free speech is important for many other reasons. Index spoke to many different experts, professors and campaigners to find out why free speech is important to them.

Index on Censorship magazine editor, Rachael Jolley, believes that free speech is crucial for change. “Free speech has always been important throughout history because it has been used to fight for change. When we talk about rights today they wouldn’t have been achieved without free speech. Think about a time from the past – women not being allowed the vote, or terrible working conditions in the mines – free speech is important as it helped change these things” she said.

Free speech is not only about your ability to speak but the ability to listen to others and allow other views to be heard. Jolley added: “We need to hear other people’s views as well as offering them your opinion. We are going through a time where people don’t want to be on a panel with people they disagree with. But we should feel comfortable being in a room with people who disagree with us as otherwise nothing will change.”

Human rights activist Peter Tatchell states that going against people who have different views and challenging them is the best way to move forward. He told Index: “Free speech does not mean giving bigots a free pass. It includes the right and moral imperative to challenge, oppose and protest bigoted views. Bad ideas are most effectively defeated by good ideas – backed up by ethics, reason – rather than by bans and censorship.”

Tatchell, who is well-known for his work in the LGBT community, found himself at the centre of a free speech row in February when the National Union of Students’ LGBT representative Fran Cowling refused to attend an event at the Canterbury Christ Church University unless he was removed from the panel; over Tatchell signing an open letter in The Observer protesting against no-platforming in universities.

Tatchell, who following the incident took part in a demonstration urging the UK National Union of Students to reform its safe space and no-platforming policies, told Index why free speech is important to him.

“Freedom of speech is one of the most precious and important human rights. A free society depends on the free exchange of ideas. Nearly all ideas are capable of giving offence to someone. Many of the most important, profound ideas in human history, such as those of Galileo Galilei and Charles Darwin, caused great religious offence in their time.”

On the current trend of no-platforming at universities, Tatchell added: “Educational institutions must be a place for the exchange and criticism of all ideas – even of the best ideas – as well as those deemed unpalatable by some. It is worrying the way the National Union of Students and its affiliated Student Unions sometimes seek to use no-platform and safe space policies to silence dissenters, including feminists, apostates, LGBTI campaigners, liberal Muslims, anti-fascists and critics of Islamist extremism.”

Article continues below

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Stay up to date on free speech” font_container=”tag:p|font_size:28|text_align:left” use_theme_fonts=”yes”][vc_separator color=”black”][/vc_column][/vc_row][vc_row][vc_column width=”1/2″][vc_column_text]Index on Censorship is a nonprofit that defends people’s freedom to express themselves without fear of harm or persecution. We fight censorship around the world.

To find out more about Index on Censorship and our work protecting free expression, join our mailing list to receive our weekly newsletter, monthly events email and periodic updates about our projects and campaigns.  See a sample of what you can expect here .

Index on Censorship will not share, sell or transfer your personal information with third parties. You may may unsubscribe at any time. To learn more about how we process your personal information,  read our privacy policy .

You will receive an email asking you to confirm your subscription to the weekly newsletter, monthly events roundup and periodic updates about our projects and campaigns. [/vc_column_text][/vc_column][vc_column width=”1/2″][gravityform id=”20″ title=”false” description=”false” ajax=”false”][/vc_column][/vc_row][vc_row][vc_column][vc_separator color=”black”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Professor Chris Frost, the former head of journalism at Liverpool John Moores University , told Index of the importance of allowing every individual view to be heard, and that those who fear taking on opposing ideas and seek to silence or no-platform should consider that it is their ideas that may be wrong. He said: “If someone’s views or policies are that appalling then they need to be challenged in public for fear they will, as a prejudice, capture support for lack of challenge. If we are unable to defeat our opponent’s arguments then perhaps it is us that is wrong.

“I would also be concerned at the fascism of a majority (or often a minority) preventing views from being spoken in public merely because they don’t like them and find them difficult to counter. Whether it is through violence or the abuse of power such as no-platform we should always fear those who seek to close down debate and impose their view, right or wrong. They are the tyrants. We need to hear many truths and live many experiences in order to gain the wisdom to make the right and justified decisions.”

Free speech has been the topic of many debates in the wake of the Charlie Hebdo attacks. The terrorist attack on the satirical magazine’s Paris office, in January 2015, has led to many questioning whether free speech is used as an excuse to be offensive.

Many world leaders spoke out in support of Charlie Hebdo and the hashtag #Jesuischarlie was used worldwide as an act of solidarity. However, the hashtag also faced some criticism as those who denounced the attacks but also found the magazine’s use of a cartoon of the Prophet Mohammed offensive instead spoke out on Twitter with the hashtag #Jenesuispascharlie.

After the city was the victim of another terrorist attack at the hands of ISIS at the Bataclan Theatre in November 2015, President François Hollande released a statement in which he said: “Freedom will always be stronger than barbarity.” This statement showed solidarity across the country and gave a message that no amount of violence or attacks could take away a person’s freedom.

French cartoonist t0ad told Index about the importance of free speech in allowing him to do his job as a cartoonist, and the effect the attacks have had on free speech in France: “Mundanely and along the same tracks, it means I can draw and post (social media has changed a hell of a lot of notions there) a drawing without expecting the police or secret services knocking at my door and sending me to jail, or risking being lynched. Cartoonists in some other countries do not have that chance, as we are brutally reminded. Free speech makes cartooning a relatively risk-free activity; however…

“Well, you know the howevers: Charlie Hebdo attacks, country law while globalisation of images and ideas, rise of intolerances, complex realities and ever shorter time and thought, etc.

“As we all see, and it concerns the other attacks, the other countries. From where I stand (behind a screen, as many of us), speech seems to have gone freer … where it consists of hate – though this should not be defined as freedom.”

In the spring 2015 issue of Index on Censorship, following the Charlie Hebdo attacks, Richard Sambrook, professor of Journalism and director of the Centre for Journalism at Cardiff University, took the opportunity to highlight the number journalists that a murdered around the world every day for doing their job, yet go unnoticed.

Sambrook told Index why everyone should have the right to free speech: “Firstly, it’s a basic liberty. Intellectual restriction is as serious as physical incarceration. Freedom to think and to speak is a basic human right. Anyone seeking to restrict it only does so in the name of seeking further power over individuals against their will. So free speech is an indicator of other freedoms.

“Secondly, it is important for a healthy society. Free speech and the free exchange of ideas is essential to a healthy democracy and – as the UN and the World Bank have researched and indicated – it is crucial for social and economic development. So free speech is not just ‘nice to have’, it is essential to the well-being, prosperity and development of societies.”

Ian Morse, a member of the Index on Censorship youth advisory board told Index how he believes free speech is important for a society to have access to information and know what options are available to them.

He said: “One thing I am beginning to realise is immensely important for a society is for individuals to know what other ideas are out there. Turkey is a baffling case study that I have been looking at for a while, but still evades my understanding. The vast majority of educated and young populations (indeed some older generations as well) realise how detrimental the AKP government has been to the country, internationally and socially. Yet the party still won a large portion of the vote in recent elections.

“I think what’s critical in each of these elections is that right before, the government has blocked Twitter, YouTube, and Facebook – so they’ve simultaneously controlled which information is released and produced a damaging image of the news media. The media crackdown perpetuates the idea that the news and social media, except the ones controlled by the AKP, are bad for the country.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”12″ style=”load-more” items_per_page=”4″ element_width=”6″ grid_id=”vc_gid:1538130760855-7d9ccb72-bf30-2″ taxonomies=”571, 986″][/vc_column][/vc_row]

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

• David Hudson

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

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

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

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

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

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

Self-governance and a check against governmental abuse

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

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

Liberty and self-fulfillment

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

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

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

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

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

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

Informational theory

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

Coronavirus and the failure of the 'Marketplace of Ideas'

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

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

Safety valve theory

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

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

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

Tolerance theory

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

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

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

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

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

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Free speech: Why it’s under attack and what can be done to promote diverse viewpoints

Human rights lawyer jacob mchangama discusses threats to freedom of expression across the globe — and why it’s important to protect this bedrock of democracy..

Jacob Mchangama speaks in August at the Chautauqua Institution in New York.

In 2005, Jacob Mchangama was a newly minted human rights attorney in his native Copenhagen when the Danish newspaper Jyllands-Posten published a series of derogatory cartoons depicting the Prophet Muhammad. The move set off a global battle over the relationship between free speech and religion, with some newspapers across Europe and the Middle East reprinting the cartoons to reaffirm the right to publish offensive material, even as violent protests erupted across the globe.

“Suddenly, forms of speech and expression that had been taken for granted in Denmark were called into question, both by extremists who were willing to use violence and terrorism to put pressure on cartoonists and others who for decades, centuries even, poked fun at authority and religion, but also within the Danish population,” recalls Mchangama. “There was this idea that free speech was important, but … you have to use free speech in a responsible manner. So I became very interested in this principle. Why is it important? What does it mean? Where does it come from?”

Those questions eventually led Mchangama to found the Copenhagen-based think tank Justitia , dedicated to promoting the rule of law and fundamental human rights and freedoms both in Denmark and abroad, and Justitia’s Future of Free Speech Project . Mchangama also penned the authoritative history of free speech: Free Speech: A History From Socrates to Social Media , published in 2022. And in April 2023, he opened the first U.S. office of Justitia at Vanderbilt University in Tennessee, where he works to promote a global culture of free speech through research and education.

Mchangama will be a plenary speaker at Learn Serve Lead 2023: The AAMC Annual Meeting on Nov. 4. He recently sat down with AAMCNews to share his thoughts on free speech and the First Amendment, the role of social media companies in spreading misinformation and divisive viewpoints, “elite panic” and what he sees as a global “free speech recession,” and what can be done to protect free speech both on campuses and more broadly.

This interview has been edited for length and clarity.

What, exactly, is free speech?

It might be good to start with the origins of free speech, which originated in the Athenian democracy 2500 years ago, where they had two overlapping concepts of free speech. One was equality of speech, which was the right of every male free born citizen to speak and vote directly in the Athenian democracy, in the assembly. So no matter whether you were uneducated or poor, you had, in principle, the same right as wealthier citizens to speak your mind.

But they also had a broader concept called parrhesia or uninhibited speech, which was a commitment to broadmindedness and tolerance of dissent.

Today, in most open, modern democracies, free speech has developed into a legal, constitutional, and internationally recognized protected right of the individual to be protected against the government [for speaking out]. In the United States, the First Amendment is probably the most speech-protected legal instrument in the history of humankind.

As a society, we rightfully disdain hate speech — and yet, hate speech is protected under the First Amendment. Why is it important to protect speech that many people find offensive?

I’m in favor of the U.S. approach, so I don't believe that the government should be able to punish hate speech unless it is intended to and likely to cause violence or serious harm. Every European democracy prohibits hate speech — in fact, there is EU legislation that requires members of the European Union to prohibit hate speech. But the definitions of hate speech vary quite dramatically between states … one of the many problems with hate speech bans is that it’s very subjective. … Today, with social media, hate speech has become a big issue again, and those who do the most removal of hate speech are private social media companies according to their own terms of service. They remove billions and billions of [instances of] hate speech every year.

Is that a good thing? Should social media companies be able to censor information on their platforms?

If you want to take the perfectly legalistic view of it, these are private companies. They have a First Amendment right themselves to do what they want on their platforms. So removing content that they feel is not in line with whatever they want is not a problem. That was a reasonable assumption when you had a much more decentralized internet, but today you have platforms that have billions of users and that have become crucial for public debate around the world. Their content moderation practices have real, practical consequences for what kind of speech can be distributed around the world.

That’s why I think it makes sense to have more distributed, decentralized content moderation standards, where you take as many of these decisions away from centralized platforms that can be pressured by governments, and [put them] into the hands of users who can then make meaningful decisions about what kind of content they want to be confronted with.

In the meantime, we all are confronted with online information that threatens people and institutions. This isn’t benign speech; it’s had real-world consequences, including the deaths of thousands of people who believed the misinformation about COVID-19 vaccines, for instance. How do you reconcile the need to protect people’s right to say what they want with the impact of their words on other people?

First of all, when you look at COVID misinformation, I think there are studies that show that it's actually a relatively small number of people who are responsible for the vast majority of that. What we also see is that those who are likely to consume and share this are people who already are skeptical and have a lack of trust in institutions. … The temptation then becomes for institutions and governments to say, Oh, we have to limit that kind of speech because it will be catastrophic, but I think that is likely to cause people to be even more distrustful, especially when you're confronted with COVID, something completely new, that you're trying to understand in real time. The process of science, as impressive as it is, is that it's trial and error, and there was lots of confusing messaging from various health institutions. If one day you insist that, let's say, face masks don't work and you lean on social media companies to remove content to the contrary and then you come back and say, Oh, actually now we have the opposite opinion, you've undermined your own position. It would have been much better if the line of communication from authorities had been, Listen, we’re confronted with a new disease. We have put all our resources, our best researchers, into this. We're making incredible progress at a speed that was unimaginable for previous generations, but we're likely to make mistakes and what we think is the best available science today might change in two months. That shows humility. And it also acknowledges that you're likely to get things wrong rather than taking one position and then having to tie yourself in knots with your messaging further down the road.

It’s interesting that the United States, which has more protections for freedom of speech than other democracies, actually did worse in terms of getting its people vaccinated and protected. So, is it just because Americans are distrustful of government in general or were the bad actors who were spreading misinformation more able to reach the American people?

That’s a very difficult question to give a convincing reply to. I think one of the problems is that there's been a collapse of trust in this country, in the United States, and also the fact that COVID very quickly became polarized and tribalized, according to culture war narratives, which probably played a significant role. Would it have helped if the federal government had been able to shut down misinformation through law? I don't have a perfect answer to that. I just think the likelihood of that creating further trust rather than distrust among people who are already deeply skeptical [is low]. … The real issue here is, what are the underlying factors that make people more susceptible to disinformation, to engage in it, to share it. What can we do to make people more likely to think twice before accepting it? Free speech and access to information are part of the solution.

Earlier this year, a respected Mayo Clinic physician almost lost his job for questioning the National Institutes of Health’s COVID-19 policy and for saying that testosterone boosts athletic performance. How important is it for academic institutions to foster (rather than squash) divergent viewpoints?

The Foundation for Individual Rights and Expression (FIRE), where I'm a senior fellow, has a Scholars Under Fire database where they show a huge uptick in the number of scholars who are sanctioned, or have had attempted sanction, since 2000. The data suggests that they are more worried about the consequences of speech than under the second Red Scare [the perceived threat of U.S. communists during the Cold War], which is pretty remarkable. That suggests to me that this is a real problem and that cancel culture is real. It's also a cultural war phenomenon. But it's not something that is invented out of thin air. It has a real basis. COVID is a hot topic, transgender [health] seems to be a huge issue and one of the most thorny ones to navigate. … It’s the responsibility of the medical establishment to have the best available knowledge and you can only arrive at that through debate and what you might call the process of “open science” where no one ever gets to establish the capital T truth or settle the debate once and for all.

In your book, you write about “elite panic,” about the temptation by elite individuals and institutions to censor divergent viewpoints. We’re certainly seeing this in our own time and it’s leading to what you call a “free speech recession.”

Elite panic is this recurring phenomenon throughout the history of free speech, where whenever the public sphere is expanded, either through new communications technology, or to segments of the population that were previously marginalized, the traditional gatekeepers, the elites who control access to information, tend to fret about the dangers of allowing the unwashed mob — who are too fickle, too unsophisticated, too unlearned — unmediated access to information. They need information to be filtered through the responsible gatekeepers and it may be even more dangerous to allow them to speak without adult supervision. That's a phenomenon that we see again and again. And we're seeing it play out now on social media. … [Elite panic is] one contributing factor to the free speech recession. Another is that democracies have shied away from protecting free speech and are much more likely now to view free speech as a danger rather than an unmitigated good. And so they don't put in the same effort at protecting free speech, whether at home or away as they did, say, in the 80s, early 90s, when free speech was crucial to defeating communism.

But I think there's some sense that unfettered free speech is threatening our democratic institutions.

That’s part of the elite panic. We’re still trying to make sense of the digital world. Most institutions and cultures develop in the analog world. We have problems keeping up with the speed of information. We have trouble keeping up with the number of opinions you see out there that go against your basic values … opinions that are more extreme, because those opinions would not have bubbled to the surface the way that they can now.

So it's likely to make people concerned, even though some of the research we’ve done shows that hate speech and disinformation — in absolute numbers, it’s a lot, but the share of the total amount of posts on social media is actually not very large. We have a built-in negativity bias. Rather than focusing on all the wonderful opportunities that social media provides and the equal conversations that people have, we tend to focus on the dark side, and I think that AI is likely to increase that concern.

How do you see it being resolved?

First of all, tinkering with the model. So maybe we will have models that are less focused on engagement and outrage. That could be one way.

Another thing is for generations who have grown up with social media to develop a more detached attitude than those of us who have been thrust into it, without having experienced it before.

As I mentioned, more decentralized models might also be a way forward, and then learning to harness the good sides and amplify them, is also something that could contribute.

Are you an advocate for absolute free speech?

No, I don’t think that any serious person is in favor of absolute free speech. … Where I may be more absolutist is when it comes to viewpoints. I don't believe there's any viewpoint in and of itself that should be prohibited.

The Value of Free Speech

Harvey c. mansfield.

Our usual debate over the extent of free speech takes for granted the value of free speech. We argue over the boundaries or limits of what can be said but pass over the importance of what is said within those bounds. This leaves us with a peculiar sense of why speech matters: We imply that it's valuable because its restraint would undermine our freedom, which is a way of avoiding the question more than of answering it.

This disinterest in the value of free speech, sometimes amounting to a refusal to define it, appears to be rooted in the principles of our liberalism, which enshrines free speech as one right, perhaps the principal right, among the rights that deserve protection in a liberal society. To guard such a right, it seems, one must not specify the value of how it will normally be used lest by such definition society destroy what it wants to protect. For by discussing the value of free speech one would expose less-valued or valueless speech to disdain, or worse, prohibition.

A society that understands itself in terms of rights must above all protect its boundaries in the definition of rights rather than concern itself too much, or at all, with what is within the protected territory. Thus, the protection of unlimited, or nearly unlimited, speech eclipses our view of worthy speech. To recover some idea of worthy speech, and therefore also of why free speech matters, we will need to challenge our liberalism for its own good, and to expose its more-than-simply-liberal aims and character. And to see these is ultimately also to grasp what speech is for, and why it is important.

FROM NORMAL SPEECH TO FREE EXPRESSION 

Everybody admits the exception to unlimited speech in the dangerous but exemplary circumstance of shouting "fire!" in a crowded theater, but no one wants to pursue the distinction implied in that exception. Yet to condemn or punish the act of falsely shouting "fire!" in that situation is indeed to distinguish between helpful and harmful speech. At times we will find value in apparently harmful speech, as in the "redeeming social value" awarded by the United States Supreme Court to speech that might appear obscene and thus dangerous to our morals. From this example one could infer that there is no such thing as a "content-free" attitude toward free speech. Our need to define permissible speech tempts or compels us to find value in any speech that is permitted. We pass from permitting speech because it is valuable to valuing speech because we permit it. However much our liberalism demands that we withhold judgment upon what is said, by the same token it impels us to find value in what we permit. Hence, one may ask, not from without but from within liberalism, what is this value — the value of normal, non-obscene speech?

The right of free speech makes presuppositions. To prize it is to hold that free speech has some value, which in turn requires that speech have value. Speech consists in giving reasons. It is not just the communication that other animals can engage in, often very effectively, without supplying reasons; only humans give reasons. Speaking is an appeal to fellow human beings who share the power of reason; so, speech presupposes that man is a rational animal. The power of reason is to appeal to others persuasively at some level of generality to gain the assent of someone besides yourself. It is more than a cry of pain or a grunt of pleasure, and it must issue in a complaint or a statement of gratitude that lifts the communication above your private feeling. It is the "rational" that rises above the "animal." Speech is a claim upon the attention of another, a prayer or a demand to be heard; it is an argument, if nothing else, against indifference.

So far, one might nod in agreement. But this seems too simple. Is it so clear that speech lifts one above personal motives? Perhaps speech is not reason but rationalization, the reasons giving effect to one's motives by concealing them rather than transcending them. And what of the joke: "Shut up," he explained. Do not many arguments end in the attempt to silence the other side's reasons? Isn't this maneuver characteristic of political speech above all?

One might allege, therefore, that the point of arguing is to win, not merely to appeal to reason, and that the power of reason is to serve as a cloak for the desire to win. But to say this admits that reason has a certain power and the desire to win a certain limit. Reason makes domination respectable while it requires the winner to make himself acceptable. Language too is not merely arbitrary; it has a structure, a grammar enabling it to make sense. Even a lie must make sense. The "shut up" joke makes sense by pointing to the fact that it is sometimes courageous and not always wise to speak.

Reason makes its way often with only apparent rationality, but the appearance of reason indicates the presence of reason. Even silencing requires an argument, as in George Orwell's rationalization from Napoleon the pig that "all animals are equal but some animals are more equal than others." The power of reason, one may conclude, is shown in its very abuse. But this is an objection to which one must return. Somehow the power of reason must be shown to be compatible with, rather than merely subordinated to, the power of rulers. Somehow one must understand reason as not merely poetry and rhetoric, or, in today's ugly word, "ideology" — in sum, not merely partisan.

Preoccupation with the limits rather than the content of free speech can be seen in John Stuart Mill's iconic pamphlet On Liberty . Mill wishes to expand the limits of free speech as against the "tyranny of the majority" that menaces his country in his time, and to do this he magnifies the benefits of free speech and minimizes the harms. The benefits culminate in more "originality" and "genius"; the harms are no worse than the need for intellectuals like himself sometimes to "keep...their convictions within their own breasts." But discussion of the consequences of free speech detracts from Mill's principle that all concern for them constitutes "interference" with individual freedom. Within the permissible limits of free speech, all speech is substantially equal, for "permissible" means deserving of an audience.

Mill divides speech into true and false, not good and bad, for true speech brings progress "[a]s mankind improve[s]," and false speech merely tests and corrects true speech. All speech is good, though it is not said to address other rational animals and does not have to be argumentative. The benefits of speech do exist, though Mill seems naively to exaggerate the power of reason in discussion. Yet in his view the right to free speech holds sway over its benefits, and the benefits do not arise from the nature of speech as giving reasons. Mill's society heads toward progress but has no sense of direction other than a vague goal of replacing "despotism" and "barbarism" with "civilization." Instead, Mill's undescribed civilization has itself been replaced in our time by value relativism that makes it a point of pride to renounce its ability to distinguish "civilization" from the "culture" of any society whatever.

The Supreme Court has charged ahead of Mill to extend speech to "expression." This is a step beyond the First Amendment, which speaks of free speech , to the assertion that it meant to say free expression or perhaps to express that word without saying it. The change has developed in a number of cases over the years, but it seems to have been introduced in the famous flag-salute case in 1943, West Virginia State Board of Education v. Barnette , when the Court decided that it was permissible for Jehovah's Witnesses not to salute the flag in schoolrooms. Their refusal to salute was taken as a symbolic exercise of free speech because the command to salute was declared to be an impermissible compulsion to speak. So refusing to speak was concluded to be speech and protected as such.

In oft-quoted words, Justice Robert Jackson said that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics..." and force citizens to do so "by word or act." Here "act" is added to "word," apparently as not the same, but the act is then taken as a kind of word. "Symbolic speech" and "expressive conduct" emerge in later cases dealing with flag burning, draft-card burning, wearing of armbands, and nude dancing. In 1941 Franklin Roosevelt had listed "freedom of speech and expression" among the Four Freedoms America would defend, and since the Court developed its meaning, "expression" has come to be accepted as an equivalent of speech or indeed as the generic term of which "speech" is one variety. Law-school courses in constitutional law now routinely use the title of "freedom of expression" for the subject of free speech.

Two questionable consequences can be seen to emerge from Justice Jackson's Barnette opinion. First, he denied that there is any constitutional fixed star of political orthodoxy in the very act of declaring the political orthodoxy of free speech. The "very purpose of a Bill of Rights," he said, "was to withdraw certain subjects from the vicissitudes of political controversy." Are not those subjects declared to be beyond controversy thereby made orthodox? The implication is that free speech must be regarded as sacred and hence has no value that can or needs to be disputed. This is a proposition I am disputing here.

Second, Justice Jackson said that free speech cannot be compelled because the Bill of Rights "guards the individual's right to speak his own mind." But to speak one's own mind is to address other minds, not merely to squeak or bark or chirp. The flag salute and the other, later examples of "expressive conduct" that the Court found to be akin to free speech are symbols or gestures to which one can impute a meaning, but they are not rational arguments. When speech is taken as expression, and "expression" becomes the general category of which speech is one type, then the rational in speech is subordinated to the irrationality of symbolic expression. Yet a symbol is only a symbol by virtue of its imputed rational meaning in words. The irrational is rightly subordinate to the rational from which alone it gains its sense. Both of these consequences imply that free speech is fundamentally irrational: the first implying that free speech cannot be rationally disputed as good or bad by partisans in politics; and the second that a symbol is not inferior to an argument but rather an argument is a kind of symbol.

A refusal to consider the content of speech so as to recognize its value leads to a minimal definition of free speech, one which allows for including as much as one would not wish to prohibit. One would not wish to do away with theater and poetry just because they add symbol, style, and gesture to reasonable speech. But though the beauties of speech add to its power, they distract from its thought, or at least conceal it. And since a thought is almost always disputable, so a less-strict definition of speech is more exact; one can be more sure of the boundary between speech and act. So the Supreme Court has found that although flag burning is acceptable as legal speech, draft-card burning can be prohibited as an illegal act. That is how it happens that our speech over free speech tends to concentrate on the extremes of riot, rebellion, eccentricity, and obscenity where reason seems to be at its weakest.

We liberals are occupied with challenges to normal speech rather than with the normal speech we reject. We so far forget that "expression" is a dilution of speech that it comes to be held the essence of it. Shouting and screaming take precedence over persuasion or threaten to become the normal means of persuasion. The more intense the expression, the freer it ought to be; the test of free speech is to show how far it can tolerate departures from normal speech. In the latest instance, a baker's message on the icing of a cake is taken as protected speech (in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission ). If I mush someone's face in it, do I send a message or commit an assault? That is the kind of discussion we are now left to have over free speech.

ENEMIES OF SPEECH 

In presuming the capability of human reason, free speech has two present-day enemies seeking to pervert it or make it irrelevant. One we have already seen: the notion that speech is dictated by the urge to express oneself. The other is that speech is directed by self-interest. All speech comes from the self, but as speech, it rises above the self when one has to give a reason. The reason may be urged with an implicit demand for attention to one's self — listen to me! — but the reason is a call to justice, not merely in the service of one's own advantage.

Socrates in Plato's Apology of Socrates  defends himself to be sure, but also "someone like himself," or a person in his position. The notion of self-expression, however, denies the power of reason and the existence of justice to say that all reason is rationalization, all generalization a fraud, a mask for the irrational id or urge, which is truly in charge. This view is the theme (the argument!) of Friedrich Nietzsche, very powerful today though often not advanced under his name. It suggests that the purpose of argument is to win and the result is not to learn, as when one's argument is refuted, but to triumph in a contest when no telling refutation can be readily produced. The ancient Sophists, without the help of Nietzsche, practiced their belief that rhetoric is clever maneuvering to get the best of your opponent. They were opposed by Socrates as enemies who did not understand the value of free speech and therefore felt free to abuse it.

Self-interest, the other enemy of free speech, also has an argument. Its proponents say that one's speech follows from one's interest, reflects it, and cannot change it. You can change your mind but not your interest; your mind is the prisoner and slave of your interest. While self-expression is heated and demanding, self-interest is cool and calculating. It has two forms: one very old and plain, the other modern (dating from the 18th century) and philosophically sophisticated.

Personal denunciation, or "character assassination," is the first form. One's opponent is said to have a bad character, a perverse sense of his self-interest that determines what he says. Hence his words are spoken in bad faith and his argument, whatever it is, can safely be ignored while focusing attention on his personal failings. The reason that this bad character deploys is the captive of his character and does not have the power to rise above it. Such a person can be defeated by reasoning that is ad hoc and ad hominem. Do not listen to him! It's better to insinuate and insult than argue with him, which would give his argument more dignity than it deserves.

This tactic, found in both mild and strong forms, is endemic to politics; it is sometimes true and always tempting, particularly in a democracy where the multitude enjoys the spectacle of bringing down the elite — the high, the mighty, and the presumptuous. The office of the demagogue has been denounced from Plato to the Federalist Papers, by friends and by opponents of popular government. Today the term is used frequently and demagogically by politicians, and never by political scientists, who refuse it the certificate of scientific credibility.

The political scientists (and their confrères in social science) have a second method of refusing to listen to speech. Their science says that speech cannot cause action; it can only be caused by action. It assumes that humans speak and act according to their interests, open or concealed. Humans speak in opinions, but they act according to their interests, which they give as opinions as if freely chosen but actually hold in consequence of their interests. These subjective opinions can be studied by social science in such magical fashion that they become objective "data" — i.e., facts obtained and certified by science. Social-science surveys are baptized as "survey data" and then explained by the interest of the group that holds them.

The explanation is a study of cause and effect with a view to making predictions, which are either in the past (as "analysis") or in the future (truly as predictions). This procedure assumes that human beings cannot choose for themselves or guide themselves, meaning not as they describe themselves. They may say "I did it," but in scientific fact they were caused to do what they boastfully claim to have done. Thus, humans are essentially slaves to the causes that science imputes to them. "You vote by your interest" would often be taken by a voter as an insult (and rightly so), but science is not troubled by such subjective reactions. It says that speech cannot be a cause of human behavior — which means that free speech has no value. Free speech in whole and every part is nothing but a boast.

FREE SPEECH WELL SAID 

At this point, it is worth recalling where we started: Present-day discussion of free speech is understandably but deplorably dominated by the question of what speech should be permitted, what forbidden. By this standard everything not forbidden is permitted and — here is the rub — considered equal because equally permitted. But all free speech does not have equal value; speech that attacks free speech has less value than speech that explains it, endorses it, and practices it. Free speech needs to define itself in order to address its enemies.

Speech that explains and uses free speech has greater value and should have precedence over speech that denies the value of speech. This does not mean that free speech should be denied to its enemies (which are self-expression and self-interest). That would be censorship, and censorship has the simple but fatal flaw of being impractical in a free society. Alexis de Tocqueville supplies a beautiful demonstration of the point. But more than impracticability, the citizens of a free society have an interest (rooted in their faith in the reason of free speech) in listening to the enemies of free speech. Those enemies may not be entirely wrong, and they certainly provide food for thought. They point to the assumptions on which free speech rests and the weaknesses that exist in supposing so confidently that free speech is really speech and really free. These weaknesses must be addressed by free citizens. The direction of my argument can be discerned by this switch of addressee from humans to citizens.

Now to take a further step: What is free speech supposed to say? The question will seem strange, even inappropriate, to one who views free speech as a right. A right to free speech presupposes that what one says, or how one exercises the right, is left undefined. The government protects the right; the citizens in society say what they please. Yet clearly some free speech is more appropriate than the rest. Some free speech contributes to free speech by helping to define freedom and free speech in general and for that society. In so doing such speech defends and promotes the right of free speech. This would be the main task of free speech: to use reason to show why free speech is valuable and to make it active and lively. The task would include the investigation of the presuppositions of free speech in political philosophy, to see whether reason can guide our lives and how.

In saying this I do not mean to abridge or deny the right of free speech but only to specify what is valuable as opposed to what is tolerated. Tolerated but not valuable is the free speech understood as self-expression or self-interest, as stated above. You should have the right to speak (almost) as you please, and that right should be protected by law. But it is important to understand and to sustain the value of the free speech that contributes to free speech rather than that which abuses the right by denying or belittling the value of free speech. Not everything said is said well, and the right of free speech needs to be exercised well.

What is it in free speech that is said well? Let the definition be positive so that we do not proceed by excluding or proscribing any speech but rather by asking what good free speech supports. We have seen that free speech presupposes the freedom of human beings. Freedom means being in charge of yourself as opposed to being a slave. More specifically, freedom is the power of the self to cause its own action and reflection as opposed to the slavery of being under the power of necessity, when one is only being caused . Self-caused is both individual and social, and it amounts to the power to choose. The individual can choose by himself or with others. In choosing, one governs oneself as a whole individual or as one among a political whole that includes other free individuals. This choosing together is self-government or political liberty.

Political liberty might not seem to be the greatest good, greater than other uses of free speech, such as freedom of thought and freedom of artistic expression, that protect individual excellence. Yet human beings are not fully self-sufficient as individuals, however much they sometimes wish to be. Men are social because they must live together, depending on one another to supply their needs, above all those bodily needs that ambitious thinkers like philosophers and poets cannot be troubled to satisfy on their own. And more than merely social, men are political because they do not have the necessary instincts to cooperate but are compelled to invent the conventions by which they live and to use the rationality they have in their nature instead of their instincts.

These conventions are based on principles by which they rule in societies. Conventions are disputable, and humans argue in politics over what they should be and who should make them. Such argument is the content of free speech, and it makes use of the rationality that is the most distinctive feature of a human. At the same time that it is distinctive, this sort of argument addresses the needs of the body, needs that humans share with other animals. Politics thus features the rule of reason over unreason, the rule of what is distinctive about humans over the necessities of animals, including the mortality common to all living things. Man in the whole is the topic of politics as much as it is the arena of philosophy and poetry. Philosophers and poets might wish to learn from politics in order to better instruct politics, as they frequently like to do.

Liberalism, as shown above, wants to distinguish politics from what it calls "civil society" in order to prevent the full operation of political liberty. It distinguishes public from private to the advantage of the latter, reducing politics to providing the means of securing the private sphere, to the pursuit of (private) happiness. It has, therefore, a strong resistance to the idea of "rule," an animus displayed in attempts made to subvert or overthrow the sovereignty of political liberty.

One such attempt is at the heart of the discipline of "economics," a science distinct from politics that seeks to establish economic laws that are independent of political rule. Another is the "right of consent" to government, made central to all other rights, which depend on government, in such manner as to provide a lesser substitute for the comprehensiveness of "rule." The people do not rule but consent to the rule of those whom they elect, who also do not rule because they are creatures of the sovereign people. Consent is passive, as consent to be ruled ; government is active but restrained from ruling. Political liberty in these constructions of liberalism is reduced to one liberty among others, such as economic liberty, or to the central but subordinate liberty of the liberty to consent.

Fortunately, there are wiser liberals, above all the two greatest authorities on American politics: the authors of the Federalist Papers and Tocqueville in his Democracy in America , who by observation and interpretation show that liberal consent in America amounts to political liberty in its fuller meaning. They show that the "Blessings of Liberty" promised in the preamble of the Constitution center on the free self-government over free men that is the same as "the rule of the free." Political liberty becomes responsible for economic liberty, ruling it with encouragement and restriction as partisan elections decide, and democratic consent becomes active in private life as well as sovereign in public decisions.

Free thought can of course exist without political liberty, as we know from the great philosophical works written in times of tyranny and of threatening religious censorship. The same is true for great works of poetry, art, and music, which seem to have become scarcer as a grave but almost unnoticed consequence of more democracy. Liberty for the few can be available if exercised with care so that it does not reach the attention of the public authority. One might conclude that this liberty is the most that can be achieved, indeed that all human achievement is reserved for the few who accomplish their thoughts and deeds by themselves beyond the notice of the many and the powerful. Yet a free society in which the many are the powerful has achieved greatness and nobility in its deeds, and in a crucial situation under the watchful attention of the world.

This is America in the 20th century, which with its allies saved civilization from the barbarism of Nazism and communism. This great deed (or series of deeds) was done not out of self-expression or self-interest by mere commitment or calculation but out of nobility, a democratic nobility shared by all though led by a few.

NOBILITY AND FREE SPEECH 

Nobility means rising above necessity, or above the seeming necessity of living as you wish and calculating for present advantage, by finding it necessary to face a daunting task, thus using necessity against itself. One must refuse to accept the slavery of seeming necessity and instead insist on the human capacity for choice. Free men preserve their freedom only through acts of nobility that elevate them above ordinary necessities that seem to provide excuses for indifference and inaction. These acts are not constantly necessary as if human life were one long war, but they are occasionally necessary, and they reveal the extent of human freedom over circumstances.

On this point one can again criticize the official liberalism of our time, which, guided by the great thinkers at its inception, sought to make freedom easy by connecting it to motives of necessity. John Locke, for example, began from the "perfect freedom" of men in the state of nature, and then tried to maintain this freedom by resorting to the right of self-preservation rather than to moral virtue to protect one's freedom. America, however, fought to preserve itself as America, a free country, not to keep its population alive as separate individuals (which might have justified indifference or even surrender). This it did as a choice, neither blindly nor automatically.

Freedom is life by choice, in some serious degree conscious and voluntary and for both the individual and society. Choice requires rising above an urge or a whim or a passion. And rising above slavery to one's human body requires moral virtue. The human body rules us by pain and pleasure, and one can become a slave to fear if one is without courage, and to pleasure if without moderation. A human cannot deny the fact of pain and pleasure, but one can learn through good upbringing to control the extremes of bodily passions in a reasonable mean.

Courage is a mean between rashness and timidity, moderation a mean between greed and insensitivity, as we recall from Aristotle's report of what we naturally know. Free speech — to return to the topic — has a stake in moral virtue as the cause of free persons. Morality demands a free person because an action is not moral unless it is chosen, and morality makes free action possible by lifting an individual or a society above slavish necessities. It's a virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom.

To repeat, I am not proposing to forbid immoral speech, assuming it has been identified as speech succumbing to human necessities. We humans need an occasional holiday from the seriousness of moral virtue, pleasant as it is to moral people. Aristotle puts the fun of wit on his list of virtues. Free speech can serve as a safety valve for letting off steam, a purging function often claimed for it that is featured by Niccolò Machiavelli. We also need other, subordinate liberties to political liberty — economic liberty to make us prosperous, artistic liberty to make our lives beautiful — but these are not as serious as political liberty.

With political liberty we speak to one another about our liberty; we argue over a course of action, a policy, and our ruling principles. Political liberty is the use of free speech to determine who and what principle should rule us.

FREE SPEECH AND FREE RULE 

Societies stay together through rulers who rule by ruling principles, which are principles about the whole, about the common good. The debate over abortion today is about the kind of society we want. One could suppose that those who want abortion to be legal should have abortions, and those opposed should refrain from them, with the result that both sides are happy. But in fact, both sides would be unhappy. Those who favor legal abortion want a society in which a woman freely controls her own body, and those opposed want a society in which a woman does not have a right to kill a developing human being for the sake of her convenience. Politics is not about "preferences," as is often said by those using the analogy of consumer preferences. One can prefer vanilla to chocolate without wanting to abolish chocolate, but this is not the case in politics. Political liberty is distinctive because it consists in free speech over the choice of which principle, under which rulers, should rule the whole.

But what is the typical choice of free speech as to rule? One can approach this question through a consideration of the freest human being, the philosopher. The philosopher is freest because he questions and studies things that most people take for granted — on the ground that taking fundamental principles for granted is a form of slavery. Freedom in the strongest or the strictest sense is to break free of the principles that normal people do not question. To break free does not necessarily mean to abandon them and live as a hermit or madman or rogue. One can question the presuppositions behind free speech and find them reasonable (as in this attempt). But then one's embrace of or accommodation to the principle of freedom has been responsibly addressed and found more or less reasonable. This is the highest or best freedom, one might reluctantly agree, but is it the only freedom? There seems also to be freedom in a loose sense, attainable by many if not all of those who do not want or are not able to be a philosopher. This would be political liberty.

Then within political liberty is there a typical argument, one found in most every free society? Indeed there is, and it is an argument analogous to the distinction between strict philosophical liberty and loose political liberty. According to Aristotle, there are two parties in every regime, visible in a free regime. The party of the many, democracy, and the party of the few, oligarchy, can be found everywhere, and they engage in argument with each other, sometimes muted and implied, sometimes open. The many are more than the few in quantity. They are the larger part of all, that is, of all individuals in the whole. How is this possible? One needs a little metaphysics to see; one must carry the logic of politics into the whole universe to clarify the democratic argument. "All" can be a whole if all are equal parts, and they can be equal if seen as bodies that are parts of a whole body. Human beings are equal with reference to their bodies and their bodily necessities. When, however, one looks to their souls or minds, they are unequal, sometimes greatly unequal. Bodies are equal when considered for their matter, in which they are the same as all matter, as if human beings were nothing but matter like the rest of the universe. By the logic of the democratic argument, humans would have nothing special, nothing outstanding or distinctive, from the rest of nature.

Can the many make a whole, given this stringent extension of the argument on their behalf? Aristotle's answer is "No," and to make it he distinguishes demotic from democratic . Demotic individuals are simply equal, but as such they cannot form a government, having no distinctive capacities. Without a government there is no rule, no common good. A government needs officials and its society needs artisans, workers, experts; all of these are unequal. It seems that certain inequalities are needed to make a whole even of equal parts. Aristotle's distinction is like James Madison's in Federalist No. 10 between democracy (meaning pure democracy) and republic (representative democracy). A republic needs institutions that will (likely) select "fit characters," as Madison calls them, who are no longer simply among the many whom they are selected to serve. The "cracy" in democracy enables it to function at the cost of departure from strict equality.

Aristotle does not make this objection to demotic equality in his own name but puts it in the mouth of a spokesman for oligarchy. Oligarchy, government of the few, stands for "the better sort," or the best, altogether for excellence, and in sum for quality. The need for quality is a need for the few who have the most of it, whatever it may be. Even democratic qualities found quite generally, like courage, are distinctive of some democrats, not all of them as such. The whole of quantity fails because it is quite homogeneous; to succeed it needs those who are outstanding and needs to give them the rank they deserve as outstanding. Democracy speaks for mankind as one individual human to another; oligarchy speaks for humanity as a whole vis-à-vis the rest of the world or the universe.

Mankind is the part of the whole of nature that has an awareness of the whole; it can reflect on the whole (through theory) and can act on it (in practice). Thus, the oligarchical argument asserts the claim of humanity to be outstanding, for its awareness perhaps the best part of the whole. To assert something is more than merely to say it when nothing is at stake; it is to speak with passion and to demand to be honored and listened to in a situation where one's statements are contested. Assertiveness is the most outstanding, the freest quality of free speech. The Declaration of Independence begins from the "self-evident" truth Americans hold that all men are created equal. But this is not enough. At the end its signers go beyond what is self-evident; they mutually pledge "our Lives, our Fortunes and our sacred Honor" to affirm it. In so doing they stand out from the equality they assert on behalf of those they excel by the very act of pledging their distinctive honor.

The two parties are those of quantity and of quality. But all nature has both quantity and quality. Humans are quantity insofar as each counts for one, but quality insofar as human beings have the special honor of claiming superiority over the rest of nature. Humans are a democracy among themselves as a species, and an aristocracy with respect to the rest of nature. Then both parties are correct or true: Quality counts for more because it is more important, and quantity counts for more because many are more than one or few. There are two meanings of "count" in regard to humans. "I count" means I am special; "we count" means "we count up." Every quantity is a quantity of a certain quality, and when counting one adds up the quality or qualities that have been identified as "counting." Yet conversely quality also depends on quantity; the quality when identified becomes something countable, as every "one" is potentially more than one, namely, few or many. In a rational claim every personal "I" becomes "someone" like me, with my qualities and deserts.

THE HIGHEST USES OF FREE SPEECH 

Tocqueville applies Aristotle's analysis to our democratic era, saying that every free society has two great parties, one that wishes to extend and another that wishes to restrict the power of the people. We may now apply the distinction to American parties today, the Democrats and the Republicans, who seem as liberals vs. conservatives to fit this general description. Indeed, ours is distinctly a politics of two parties, in a way that sheds light on Aristotle's point — though other free societies, with more parties, also tend to fall into broad coalitions of the left and the right in related and similar ways. These are not always perfectly the parties of quantity and quality, of course, but they are often roughly just that.

This may be particularly difficult to see given the current American president, elected by Republicans but not much of one himself, who has an adversarial relationship with virtue and particularly with its accompanying conventions. He does appeal to virtue by loudly emphasizing the application of vulgar versions of it that are attractive to his supporters, almost all of whom are more honest than he is. But even now, we can perceive that our two parties are locked in competition between a more quantitative ideal of inclusion and a more qualitative ideal of distinction.

Both parties are forgivably rather self-righteous about these ideals because, unlike the ordinary citizens who compose them, they are always arguing with each other and in doing so always compelled to make a point of themselves. They argue over the character of the whole, the whole of our country and also the whole of all things. Is it a homogeneous whole of equal or similar individuals, as the Democrats intend, or a heterogeneous whole of diverse parts of different rank and importance, as Republicans imply? The argument between these two wholes, we may now conclude, is free speech about the character of free human beings. Each is a partial truth, but each is tempted to make the partial truth a partisan whole. In doing so, each attempts to explain the other side and claim it for themselves: Democrats want virtue but in pursuit of equality; Republicans want popularity but from a virtuous people. Each reveals itself when trying to answer the other.

Democrats imply a whole that is inclusive of all, when each is understood as equal to everyone else; Republicans imply a whole with hierarchy and ranking of those who are better or best at the top. One can understand this political difference as a disagreement over our non-political thinking. When defining a thing it is necessary to speak of what it is when it is perfect or complete, in its best instance, and yet also to speak of the quality or qualities that cover all instances of that thing so as not to omit what must be included. Thus, a tree is defined by the complete tree and by all instances of objects that one would call a tree. The best instance is the standard that a tree should fit, and the class of tree holds together all its instances. Every definition needs to combine standard and class; it needs to have a standard to state a class. The difficulty is in defining a human being, where the best instance is far distant from the average or worst instances — so that a definition combining class and standard is very difficult to specify. The standard of the best human is too strict to include all humans, and the class of all humans is too loose to do justice to the best. Our two parties represent these two tendencies, and each tries to see the whole in terms of its partial or partisan view. They each call on us to exercise our freedom by choosing its way.

There is no freedom without choice, and no choice without choice-worthy choices, those that make sense and can be defended as reasonable. The politics of our free country is defined more by a dualism of our two parties than a pluralism of any number. There are many ways in which a people can be made more alike and more unlike, but Nietzsche is wrong to say that man has a thousand and one goals. Our politics is not indeterminate, chaotic, or arbitrary; it is connected to human nature, to the grand question raised by human nature, and to the choice we make in the exercise of our natural capacity for choice.

That capacity depends on the speech with which we form and state a choice. We can therefore conclude where we began: Our liberalism — and here I include conservatives with those now called "liberals" — should cease its feckless quest to overturn any rational basis for freedom and thereby deny any value to free speech beyond its being unfettered. What a surprise that in our very partisan differences, fickle and arbitrary as they often seem, we should turn out to be rational beings, worthy of a freedom to speak.

Harvey C. Mansfield is a senior fellow at the Hoover Institution and the William R. Kenan Jr. Professor of Government at Harvard University.

The Insoluble Problem of Free Speech

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Human Rights

The ongoing challenge to define free speech, by stephen j. wermiel.

Freedom of speech, Supreme Court Justice Benjamin Cardozo declared more than 80 years ago, “is the matrix, the indispensable condition of nearly every other form of freedom.” Countless other justices, commentators, philosophers, and more have waxed eloquent for decades over the critically important role that freedom of speech plays in promoting and maintaining democracy.

Yet 227 years after the first 10 amendments to the U.S. Constitution were ratified  in 1791 as the Bill of Rights, debate continues about the meaning of freedom of speech and its First Amendment companion, freedom of the press.

This issue of Human Rights explores contemporary issues, controversies, and court rulings about freedom of speech and press. This is not meant to be a comprehensive survey of First Amendment developments, but rather a smorgasbord of interesting issues.

One point of regular debate is whether there is a free speech breaking point, a line at which the hateful or harmful or controversial nature of speech should cause it to lose constitutional protection under the First Amendment. As longtime law professor, free speech advocate, author, and former American Civil Liberties Union national president Nadine Strossen notes in her article, there has long been a dichotomy in public opinion about free speech. Surveys traditionally show that the American people have strong support for free speech in general, but that number decreases when the poll focuses on particular forms of controversial speech.

The controversy over what many call “hate speech” is not new, but it is renewed as our nation experiences the Black Lives Matter movement and the Me Too movement. These movements have raised consciousness and promoted national dialogue about racism, sexual harassment, and more. With the raised awareness come increased calls for laws punishing speech that is racially harmful or that is offensive based on gender or gender identity.

At present, contrary to widely held misimpressions, there is not a category of speech known as “hate speech” that may uniformly be prohibited or punished. Hateful speech that threatens or incites lawlessness or that contributes to motive for a criminal act may, in some instances, be punished as part of a hate crime, but not simply as offensive speech. Offensive speech that creates a hostile work environment or that disrupts school classrooms may be prohibited.

But apart from those exceptions, the Supreme Court has held strongly to the view that our nation believes in the public exchange of ideas and open debate, that the response to offensive speech is to speak in response. The dichotomy—society generally favoring free speech, but individuals objecting to the protection of particular messages—and the debate over it seem likely to continue unabated.

A related contemporary free speech issue is raised in debates on college campuses about whether schools should prohibit speeches by speakers whose messages are offensive to student groups on similar grounds of race and gender hostility. On balance, there is certainly vastly more free exchange of ideas that takes place on campuses today than the relatively small number of controversies or speakers who were banned or shut down by protests. But those controversies have garnered prominent national attention, and some examples are reflected in this issue of Human Rights .

The campus controversies may be an example of freedom of speech in flux. Whether they are a new phenomenon or more numerous than in the past may be beside the point. Some part of the current generation of students, population size unknown, believes that they should not have to listen to offensive speech that targets oppressed elements of society for scorn and derision. This segment of the student population does not buy into the open dialogue paradigm for free speech when the speakers are targeting minority groups. Whether they feel that the closed settings of college campuses require special handling, or whether they believe more broadly that hateful speech has no place in society, remains a question for future consideration.

Few controversies are louder or more visible today than attention to the role and credibility of the news media. A steady barrage of tweets by President Donald Trump about “fake news” and the “fake news media” has put the role and credibility of the media front and center in the public eye. Media critics, fueled by Trump or otherwise, would like to dislodge societal norms that the traditional news media strives to be fair and objective. The norm has been based on the belief that the media serves two important roles: first, that the media provides the essential facts that inform public debate; and, second, that the media serves as a watchdog to hold government accountable.

The present threat is not so much that government officials in the United States will control or even suppress the news media. The Supreme Court has probably built enough safeguards under the First Amendment to generally protect the ability of the news media to operate free of government interference. The concern is that constant attacks on the veracity of the press may hurt credibility and cause hostility toward reporters trying to do their jobs. The concern is also that if ridicule of the news media becomes acceptable in this country, it helps to legitimize cutbacks on freedom of the press in other parts of the world as well. Jane E. Kirtley, professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota and past director for 14 years of the Reporters Committee for Freedom of the Press, brings her expertise to these issues in her article.

Other current issues in our society raise interesting free speech questions as well. It is well-established  law that the First Amendment’s free speech guarantee only applies to government action. It is the government— whether federal, state, or local—that may not restrict freedom of speech without satisfying a variety of standards and tests that have been established by the Supreme Court over the past century. But the difference between government action and private regulation is sometimes a fine line. This thin distinction raises new questions about freedom of speech.

Consider the “Take a Knee” protests among National Football League (NFL) players expressing support for the Black Lives Matter movement by kneeling during the National Anthem. On their face, these protests involve entirely private conduct; the players are contractual employees of the private owners of the NFL teams, and the First Amendment has no part to play. But what could be more public than these protests, watched by millions of people, taking place in stadiums that were often built with taxpayer support, debated by elected politicians and other public officials, discussed by television commentators because of the public importance of the issue. That is not enough to trigger the application of the First Amendment, but should it be? First Amendment scholar David L. Hudson Jr., a law professor in Nashville, considers this and related questions about the public-private distinction in his article.

Another newly emerging aspect of the public-private line is the use of social media communications by public officials. Facebook and Twitter are private corporations, not government actors, much like NFL team owners. But as one article exams in this issue, a federal court recently wrestled with the novel question of whether a public official’s speech is covered by the First Amendment when communicating official business on a private social media platform. In a challenge by individuals who were barred from President Trump’s Twitter account, a federal judge ruled that blocking access to individuals based on their viewpoint violated the First Amendment. If the ruling is upheld on appeal, it may open up an entire new avenue of First Amendment inquiry.

One aspect of current First Amendment law is not so much in flux as in a state of befuddlement. Courts have long wrestled with how to deal with sexually explicit material under the First Amendment, what images, acts, and words are protected speech and what crosses the line into illegal obscenity. But today that struggle that has spanned decades seems largely relegated to history because of technology. The advent of the relatively unregulated Internet has made access to sexually explicit material virtually instantaneous in the home without resort to mailed books and magazines or trips to adult bookstores or theaters.

In his article, law professor and First Amendment scholar Geoffrey R. Stone elaborates on much of the legal and social history and current challenges in handling sexually explicit material, drawing on his own 2017 book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century .

If there is a unifying theme in the articles in this issue of Human Rights, it may be that while as a nation, we love our freedoms, including freedom of speech and freedom of the press, we are never far removed—even after more than two centuries—from debates and disputes over the scope and meaning of those rights .

Stephen J. Wermiel is a professor of practice of constitutional law at American University Washington College of Law. He is past chair of the American Bar Association (ABA) Section of Civil Rights and Social Justice and a current member of the ABA Board of Governors.

The views expressed here are the author's and do not reflect those of the ABA Board of Governors.

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Why Is Freedom Of Speech Important? The Relevance Explained

The term freedom of speech is the right of a person to express his thoughts freely. It includes freedom of expression to express themselves and pass a piece of vital information either in writing or orally to the people. The reason the freedom of speech is essential is just like drinking water for keeping our body system hydrated, freedom of speech is very important for the growth of our community and societies.

Now, why is freedom of speech important?

In considering the question, why is freedom of speech important, we must understand that freedom of speech has become vital because, without freedom of speech, some people won’t be able to communicate effectively and even say a word when things are going wrong. Why freedom of expression suffers in some other countries might be due to their lack of cognizance of why freedom of speech is essential. It is the way of anything we do that drives us, so if a country doesn’t know why freedom of speech is vital, that country or land will fight the establishment of liberty. Freedom of speech is essential because it changes the narrative of how people feel when they want to express themselves in public and even to people in their immediate environment.

Continue reading to learn more about the importance of freedom of speech !

What You Need To Know About Freedom Of Speech

Freedom of speech sometimes conflicts with the rights and freedoms of others. But why freedom of speech is fundamental is based on the fact that freedom of speech gives one the feeling of lively hood. According to international law, restrictions on freedom of expression are subject to certain legal conditions.

Origin Of Freedom Of Speech

We are aware that freedom of speech emerged between the early 5th and 6th century. It also recognized that the Roman Republic added freedom of speech and freedom of religion too. Why freedom of speech was essential at that time should tell you that freedom of speech is vital and very important even in these modern days.

Freedom of speech is essential to us and society, although there was the first amendment in 1791, and to date, the ideas of human rights that lead to freedom of speech is a paper in the ancient human right documents.

The Core Value That Makes Freedom Of Speech Important

We cannot overlook the importance of freedom of speech. There are a few core values I’m about to review for you now. Freedom of speech is a knowledge that transits through generations. It is a right every citizen of a state needs to have.

• It enables the dispersion of excellent information. News gets through either a citizen or sojourners to the king of the kings’ men.
• It enables the media to pass protective information to the people of the community for their safety, just like the press passes the information of helpful tips about the coronavirus.
• Why is freedom of speech is also essential is so that people will get to the impact of new ideas. Also, information from and within the world will effectively get to them.
• Why freedom of speech is essential is because one of the best ways of passing information is through communication, and you can’t communicate if you don’t have the liberty to express yourself freely.

The Role Of Freedom Of Speech

Freedom of speech plays a vital role in our lives as individuals. That’s why freedom of speech is fundamental.

The recognition of justice

The recognition of truthfulness and justice, clarity, the openness of freedom of speech and information, is another significant role why freedom of speech is essential. Clarity of information depends on the extent to which freedom of expression of thought, freedom of speech is open in all the changes and processes taking place in society.

The assurance of well-being

Another role of freedom of speech and why freedom of speech is essential is to ensuring freedom of expression and information, openness, clarity of all ongoing changes and processes. The clarity and transparency in most cases depend on how freely and democratically conducted operations are covered by the press and other media, since freedom of speech, freedom of the media is a distinctive sign of Democracy.

As people are working under Democracy, freedom at all stages is a significant reason why freedom of speech is essential. The most important thing is to have strong laws giving the right to freedom

Protection of rights

Another reason the freedom of speech is vital is because of the protection of rights and liberties. The protection is, especially in information activities. It improves the infrastructure of public information, and ensuring its stable operation occupies an essential place in the system of public interests; why freedom of speech is critical can never be overemphasized.

Societal Impact

The number one reason why freedom of speech is essential is that it strengthens the measurable impact of information on human life.

The scientific and technological revolution determines this in the field of computer technology, and telecommunications, why the freedom of speech is essential is those new achievements that significantly increase the efficiency of activities related to information,

Secondly, rights and freedoms in the field of human informational activities are the central values of modern civilization.

The Need For Protecting Healthy Speech

Although Freedom of speech is Important and very vital, it is unhealthy for us to use the leverage badly hence causing trouble in the community.

Why the freedom of speech is essential is not for us to abuse the privilege but rather use it for the betterment of ourselves.

• It helps the community to stay in harmony
• It protects the business and promotes foreign exchange.
• Individuals have peace in running daily activities with people.

The Disadvantage Of Freedom Of Speech

While freedom of speech is good, they are so many disadvantages to the form of expression. Anything that has an advantage has its disadvantages. Here are some disadvantages of freedom of speech.

It can spread lousy information

One significant disadvantage of freedom of speech is that it can cause substantial damage because people would not want to verify certain information before spreading it to the public. People might tend to want to believe the information because it is coming from the mouth of someone they trust.

Most times, wrong information spreads through men who have attained great height, and when a piece of information is coming from some persons like that, almost everyone will want to believe.

It spreads fear

When people get information that instills fear instead of hope, it becomes a disadvantage of freedom of speech because the main aim is to make people live in harmony and not to live in fear. Relative to the case of the coronavirus, if people keep spreading the fear of the virus instead of sharing both the positive and negative results, it will even kill some people before the virus.

It can promote violence

Words have powers. It can pierce the emotion of people hence causing emotional damage to people.

It encourages verbal abuse

Verbal abuse and physical abuse have just almost the same effect. Verbal abuse is an insult to both the leaders and the people of a nation.

More Reasons Freedom Of Speech Is Important

Freedom of speech prime exchange of ideas: this is another excellent reason why freedom of speech is essential. People get to share a plan that will help them become better versions of themselves. When an idea is shared, it grows more significant than the norms because people’s mindset differs from another. Sharing thoughts will become easy.

Why freedom of speech is essential is also because it allows thought leaders can share their ideas because they are like the future of the community or even nation at large. Another good reason why freedom of speech is essential is that it exposes unlawful activities.

Without the freedom of speech, a lot of immoral and unlawful activities will be taking place and nobody to question or to air out what’s going on in that office , organization, community, of home.

For the sake of freedom of speech before would want to do anything they will carefully watch before doing it and, in most cases, don’t even do it because they know that with the freedom of speech, anybody can see them and report to the authority. They are hence tarnishing their image for them. Nobody likes to have their image displayed in a negative light.

Freedom of speech promotes societal growth. The most developed countries in the world are those countries that enable the freedom of speech earlier because amid the people’s information lies superior wisdom that can transform the society for better and then attract global recognition and foreign exchange.

In looking at why freedom of speech is essential, we must understand that the reasons are enormous. We can live happily with friends and family, share ideas to better our lives and community, speak out when something terrible is going on in our office, company, organization, community, and even our community. Freedom of speech is necessary because it is for the benefit of us all.

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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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I Why Protect Free Speech?

• Published: March 2007
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This chapter discusses the nature of a free speech principle and explores the coherence of four justifications for that principle: arguments concerned with the importance of discovering truth, free speech as an aspect of self-fulfilment, the argument from citizen participation in a democracy, and suspicion of government. Each of these arguments emphasises the interests of either the speaker or the audience, or perhaps that of the public in an open tolerant society. Therefore, the free speech interests of speakers, recipients (listeners, readers, and viewers), and the general public in the unimpeded communication of information and ideas are considered. These distinctions may have legal significance. Some texts confer rights on both speakers and recipients, while others provide only for freedom of speech or expression, without making it clear whether both groups enjoy rights.

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Managing American Spaces

First amendment rights: freedom of speech and the press.

FIRST AMENDMENT RIGHTS:

Freedom of speech and the press, resource toolkit for american spaces.

This Resource Toolkit is designed for programming at American Spaces to create a greater awareness of the rights outlined in the First Amendment of the Bill of Rights, specifically freedom of speech and of the press.

SPEECH AND PRESS IN AMERICA: UNLIMITED?

Free speech and press have a long  history in America. These protections give an independent press and individuals the right to express themselves without government interference, this includes the right to hold unpopular opinions.

LESSON PLANS

• The Dilemma of Free Speech * – This PBS lesson Plan has videos and handouts

From Newseum * with videos, handouts, and lesson plans (requires free account)

• Introduction to the First Amendment
• Free Speech Essentials
• You Can’t Say that?!

What is Freedom of Speech ?

The First Amendment to the U.S. Constitution reads:

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 …

Freedom of speech, also interpreted to include expression beyond speech, is the right for people to express, promote, and defend their ideas through written, artistic, oral, and sign-based communication. Since America’s founding, freedom of speech allows individuals to speak out against injustices, criticize government policy, and share their opinions. A free press provides formal channels for amplifying different opinions, criticisms, and perspectives. Both freedoms are invaluable cornerstones of a free society. See this short video for a quick summary.

MORE RESOURCES

Lesson plans on press freedom*.

• Free Press Challenges through History
• World Press Freedom Map
• The Berlin Wall and the Press

SHARE AMERICA ARTICLES

• Why offensive speech is protected
• 3 court cases that show what free speech means
• Censor the Internet? Bad Idea.
• Want a democracy? Keep the press free and active.
• How can a free press make a better future?

VIDEOS/PODCAST*

• Limits of Free Speech
• Freedom of Speech Explained
• Unprecedented Podcast on First Amendment court case
• NewseumEd has some excellent interactive online materials, including videos and self-paced courses on freedom of speech and press. You’ll need to create a free account to access their materials.

The Importance of Free Press

Knowledge is power. In print, online, or on TV or radio:  without a free exchange of information, people can’t be fully aware of what’s going on around them and so can’t meaningfully participate in their communities or democracies. When freedom of expression is respected and recognized the media are able to freely report on politics, economics, and societal events as they occur. The free press is the foundation of any true democracy. A strong democracy encourages a free press — one that keeps the public informed, enables a diversity of voices, and holds leaders accountable.

Program Ideas

• Invite independent journalists and activists to discuss their work and issues related to press freedom and freedom of expression in your country.
• The United States Agency for Global Media (USAGM) , which includes Voice of America, provides unbiased reporting in countries and languages across the world. This page explains how your American Space can use USAGM resources, including how to get a USAGM expert to present virtually.
• Start journalism clubs – This could include photojournalism, multimedia, and podcasting. Consider having a U.S. exchange alumni journalist lead or present at these clubs.

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Updated May 2024

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An Attack on Free Speech at Harvard

Universities require a culture of open inquiry, viewpoint diversity, and constructive disagreement.

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Produced by ElevenLabs and News Over Audio (NOA) using AI narration.

In a recent op-ed in The Harvard Crimson —“ Faculty Speech Must Have Limits ”—the university’s dean of social science, Lawrence Bobo, made an extraordinary set of claims that seriously threaten academic freedom, including the chilling idea that faculty members who dare to criticize the university should be punished. Bobo is a senior administrator at Harvard, overseeing centers and departments including history, economics, sociology, and African and African American studies. When he writes about faculty free speech, those within and outside his division listen.

His essay reflects a poor appreciation of the norms and values that academic freedom was developed to protect. As the Council on Academic Freedom at Harvard—a faculty group of which I am co-president—has written, “A university must ensure that the work of its scholars receives robust, informed, and impartial appraisal that applies the best truth-seeking standards appropriate to their discipline— without pressure to bow to the opinions of the state, a corporation, a university administrator, or those (including students) who express feelings of outrage or harm about ideas they dislike.” Further, members of the academic community “should be free from reprisal for positions they defend, questions they ask, or ideas they entertain.” Stated another way, universities require a culture of open inquiry, viewpoint diversity, and constructive disagreement.

Bobo, for his part, presented two distinct scenarios in which he asserted that faculty speech should be restricted. His first example referenced prominent faculty members with large platforms for communicating their views who speak or write to “excoriate University leadership, faculty, staff, or students with the intent to arouse external intervention in University business.” He concluded that such speech may deserve to be punished by the university. The prime example he described came from “a former University president”—an apparent allusion to former Harvard President Lawrence Summers—who strongly criticized the university leadership’s response to the Hamas attacks on October 7.

Bobo didn’t identify the nature of the sanctions he had in mind. But any sanction for the speech he referenced would be a frontal assault on academic freedom. The speech he proposed to target doesn’t trigger any of the well-recognized exceptions to free-speech protection, such as extortion, bribery, libel, and sexual harassment; violation of time, place, and manner restrictions; and dereliction of professional duties. That a leader of Harvard would sanction a faculty member—with or without a large platform—for criticizing the actions of other members of the Harvard community or the university itself is outrageous. That would be true even if a faculty member really did speak with the intent to encourage what Bobo identified as “external actors”—media, alumni, donors, and government—to “intervene” in Harvard affairs.

Will Creeley: Those who preach free speech need to practice it

Each of the external constituencies Bobo identified has a legitimate interest in Harvard, and faculty should absolutely have the right to communicate their unhappiness with Harvard and its actions to these groups. Of course, such public criticisms may be right or wrong, well or poorly argued, and faculty risk reputational consequences based on the nature of their criticism. The appropriate response by university leaders who might disagree with such statements is to counter them with speech, as strongly and pointedly as those leaders wish, not to sanction them.

Two of the groups on Bobo’s list, however—alumni and donors—are part of the extended Harvard community, not simply external actors. The credentials and reputation of alumni are linked to the reputation of their alma mater, and donors have every right to weigh in on whether the beneficiary of their generosity is fulfilling its stated goals. Of course, these constituencies don’t speak with one voice, and the views of individuals or groups of alumni and donors may be reasonable or unreasonable. Leaders should listen to diverse inputs and, based on their considered judgment, choose and defend specific courses of action.

What if faculty statements are seen to promote government interventions in university affairs? A private university like Harvard has many well-defined points of intersection with government policy, including the need to conform with Titles VI and IX of the Civil Rights Act of 1964. Likewise, universities agree to conform with a range of embedded policies when they accept government grants and gain access to student loans. If government interventions cross the line, making specific demands regarding curriculum and other educational and research matters, then the university would need to resist the threat to its core values under applicable law. But a faculty member who expressed support for intrusive government actions should have their views vigorously countered by university leaders, not be punished for expressing them.

Bobo’s second example of speech that needs limits involves faculty encouraging students to engage in campus activities that explicitly violate university rules of conduct, which raises distinct and more complicated issues. Of course, if a faculty member occupied a dean’s office to demand a specific administrative action, they could be sanctioned even under existing policies. But what if a faculty member encouraged protesting students to violate university rules? And what does encouragement even mean in this context?

Many faculty members supported the protests against Israel’s war in Gaza and communicated with students to provide advice and guidance, including on their rights as students and the nature and consequences of civil disobedience. Indeed, many law-school faculty members provided such advice and counsel in alignment with their professional roles, so the discussions were covered by attorney-client privilege. Such faculty speech should be fully protected.

But might there be instances where such faculty speech should not be protected? Free speech requires a very high bar for considering speech between a faculty member and a student protester to have crossed the line into conspiring to commit or aiding misconduct. I haven’t heard of any instances where faculty at Harvard went beyond providing moral support and counsel, and actually encouraged or incited students to violate clearly articulated university rules.

So, how strong are the cases Bobo made for restricting faculty speech? His first category—speech publicly critical of the university by a prominent member of the faculty—should be fully protected, never sanctioned or threatened with sanctions. He provided no cogent argument to the contrary consistent with the core principles of academic freedom. His second category—sanctioning a faculty member for encouraging students to violate campus rules—involves conduct that it seems no one has actually documented. Regrettably, though, the essay is likely both to chill faculty speech and to suppress appropriate advisory interactions between faculty and students, not least because Bobo failed to stipulate that the views were his own and not a statement of policy for the division he administers.

Robert E. Rubin: Higher education isn’t the enemy

To take an optimistic view, the current moment seems to have stimulated a valuable reaffirmation of the crucial importance of protecting campus speech and academic freedom. But Bobo’s essay is a reminder that there is much work still to be done, and that the price of academic freedom is eternal vigilance.

Supreme Court’s far right faces a free-speech problem

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This Supreme Court term promises to be important for the First Amendment. Major decisions are expected soon on the rights of social media platforms and their users. But the free-speech fun has already begun.

In an otherwise unremarkable trademark case, a major debate about how to decide First Amendment issues broke out. On one side was Justice Clarence Thomas, joined fully by Justices Samuel Alito and Neil Gorsuch, pushing the hard-line conservatives’ new “history and tradition” approach to interpreting laws.

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On the other was Justice Amy Coney Barrett, joined fully by Justice Elena Kagan and partly by Justices Sonia Sotomayor and Ketanji Brown Jackson, calling for a simple rule drawn from analogous free-speech precedent.

There are a number of important takeaways, but the most relevant right now is that neither originalism nor the more malleable “history and tradition” can help solve new problems in free-speech law.

The trademark case, Vidal v. Elster, was initiated by one Steve Elster, who tried to trademark the phrase “Trump too small.” The Patent and Trademark Office rejected the trademark because the Lanham Act says you can’t trademark the name of a living individual without his or her consent. In court, Elster argued that the living person rule should be held unconstitutional because applying it requires reading the trademark to ascertain if it contains the name of a living person. According to a formalistic rule first formulated by Thomas in a 2015 case, if a law requires you to look at the content of an utterance to apply the law, it presumptively violates free speech.

Applying Thomas’s absolutist free-speech rule to the living persons law would produce the absurd result that the living persons rule should be struck down: The only way you can tell if a trademark includes the name of a living person is by reading what the trademark says.

So Thomas broke out the conservatives’ favorite new constitutional toy, the idea that the Constitution should be interpreted according to “history and tradition.”

This approach has been used by the conservative court in the last couple of years to reverse Roe v. Wade, vastly expand gun rights, and overturn 50-plus years of existing doctrine on the separation of church and state.

Thomas based his majority opinion on the idea that trademark law has been around for a long time and no one has ever seriously thought the living persons rule violated the First Amendment.

On the surface this may sound like a reasonable approach.

The problem is that, if you really take history and tradition back to 1791 and earlier in the free-speech context, you would have to trash nearly the entirety of free-speech doctrine, which was created by judges in the 20th and 21st centuries.

The First Amendment as ratified and understood in 1791 didn’t receive any meaningful doctrinal development by the Supreme Court until 1919, when Justice Oliver Wendell Holmes initiated modern free-speech doctrine. At the time, Holmes himself acknowledged that it wasn’t clear if the framers had intended the First Amendment to do anything more than prohibit pre-emptive censorship. In other words, when it comes to free speech, originalism is useless. History and tradition is little better.

Barrett understands all this very clearly. She wrote a concurrence explaining that Thomas’s historical analysis was unconvincing and that history and tradition would be a bad way to decide free-speech cases. Instead, she proposed a simple, clear rule: There is nothing wrong with content-based trademark rules as long as they are reasonably related to the two purposes of trademark law, protecting the trademark owner and enabling consumers to tell products from each other.

To be sure, Barrett’s opinion isn’t some foray into liberalism. It’s just a demonstration of doctrinal intelligence and honesty in the face of the mumbo-jumbo of history and tradition. Indeed, as is frequently the case for Barrett, the guiding spirit behind her position is that of the late Justice Antonin Scalia, for whom she clerked. Barrett explained neatly that Thomas had failed to “adopt a generally applicable principle” in his opinion — the cardinal sin for Scalia, who believed that, as he once put it, the rule of law should be a law of rules.

The upshot is that Barrett is registering skepticism about history and tradition in general — and offering a particularly appropriate and devastating riposte to its use in free-speech cases.

Whatever the court decides about social media, it would do better to apply First Amendment doctrine in the light of the purposes of free expression, not based on vague history and tradition that long preceded social media’s invention.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”

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285. The End of Infowars & Free Speech, Notes from Fighting Carbine

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Episode 285. I dive into the continuing Alex Jones and Infowars bankruptcy case and explain how when the machine wants you it’ll take you. We live in a post-legal America. In the second half I dive into notes from Fighting Carbine last weekend, training methodology, and several takeaways I think are most important for folks to focus on over the usual tacticool bullshit flavors of the month.

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