what article is the freedom of speech in

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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Freedom of speech: historical background.

• U.S. Constitution Annotated

First Amendment :

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.

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Footnote 1 Annals of Cong. 434 (1789) . Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435 . Although passed by the House, the amendment was defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and the States,” supra . The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 Footnote Id. at 731 (August 15, 1789). In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971) . Subsequently, the religion clauses and these clauses were combined by the Senate. 4 Footnote Id. at 1153 . The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789) . There are no records of debates in the states on ratification. In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. at 738 . That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.

Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” 7 Footnote 4 W. Blackstone’s Commentaries on the Laws of England 151–52 (T. Cooley, 2d rev. ed. 1872) . See 3 J. Story , Commentaries on the Constitution of the United States 1874–86 (1833) . The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History (1960) , which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment , 8 Footnote It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant , James Madison: Father of the Constitution 1787–1800 at 416–20 (1950) . “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794) . On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962) . There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955) . Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers , supra , at 367. it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 9 Footnote The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith , Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (1956) . and the use by the Adams Administration of the Act to prosecute its political opponents, 10 Footnote Id. at 159 et seq. something of a libertarian theory of freedom of speech and press, 11 Footnote L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History ch. 6 (1960) ; New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964) . But compare L. Levy , Emergence of a Free Press (1985) , a revised and enlarged edition of Legacy of Expression , in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts. which, however much the Jeffersonians may have departed from it upon assuming power, 12 Footnote L. Levy , Jefferson and Civil Liberties: The Darker Side (1963) . Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford ed., 1905) . was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I. 13 Footnote New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan , Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment ,” id. at 273 , which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275 . This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment .” Id. at 276 . Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison , 341–406 (G. Hunt ed., 1908) . Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment , “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.” 14 Footnote Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, citation omitted). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281 (1897) . That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion). But as Justice Holmes also observed, “[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.” 15 Footnote Patterson v. Colorado, 205 U.S. 454, 461 (1907) .

But, in Schenck v. United States , 16 Footnote 249 U.S. 47, 51–52 (1919) (citations omitted). the first of the post-World War I cases to reach the Court, Justice Holmes, in his opinion for the Court upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as on prior restraint. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Justice Holmes, along with Justice Brandeis, soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech that offered no threat to organized institutions. 17 Footnote Debs v. United States, 249 U.S. 211 (1919) ; Abrams v. United States, 250 U.S. 616 (1919) ; Schaefer v. United States, 251 U.S. 466 (1920) ; Pierce v. United States, 252 U.S. 239 (1920) ; United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921) . A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920) . But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the states to suppress speech and press that the doctrines developed. 18 Footnote Gitlow v. New York, 268 U.S. 652 (1925) ; Whitney v. California, 274 U.S. 357 (1927) . The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles. At first, Holmes and Brandeis remained in dissent, but, in Fiske v. Kansas , 19 Footnote 274 U.S. 380 (1927) . the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California , 20 Footnote 283 U.S. 359 (1931) . By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment . Lamont v. Postmaster General, 381 U.S. 301 (1965) . See also United States v. Robel, 389 U.S. 258 (1967) . voided a state statute on grounds of its interference with free speech. 21 Footnote See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ; Herndon v. Lowry, 301 U.S. 242 (1937) ; DeJonge v. Oregon, 299 U.S. 353 (1937) ; Lovell v. City of Griffin, 303 U.S. 444 (1938) . State common law was also voided, with the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law. 22 Footnote Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 23 Footnote New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) . And, in 1969, the Court said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 24 Footnote Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) . This development and its myriad applications are elaborated in the following sections.

The following state regulations pages link to this page.

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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
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Acknowledgments

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

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

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Library of Congress Catalog Data: ISSN 1095-5054

The Non–First Amendment Law of Freedom of Speech

• Genevieve Lakier
• See full issue

The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain .

Introduction

The First Amendment dominates both popular and scholarly discussion of freedom of speech in the United States. If one takes a look at the tremendous amount of writing that has been produced to analyze, celebrate, or deplore how expressive freedom has been legally guaranteed in this country, one will quickly see that the vast majority of it focuses on the Free Speech and Press Clauses of the First Amendment and the judicial opinions that interpret and give those clauses force.

It is easy enough to understand why discussion of freedom of speech and press has tended to be so First Amendment–centric. 1 The Free Speech Clause of the First Amendment has for decades now served as one of the most powerful mechanisms of individual rights protection in the Federal Constitution. It has been interpreted to apply to a dizzying variety of kinds of speech and expressive conduct. Today, the First Amendment protects not only explicitly political speech and journalism but also religious speech, artistic speech, scientific speech, most forms of popular entertainment, nonobscene pornography, commercial advertisements, and even nude dancing. 2 The strength and size of the modern First Amendment have given it a powerful cultural status. 3 They also make it easy to equate the free speech tradition in the United States with the First Amendment tradition. 4 Like the sun, the First Amendment’s size and brightness tend to blot out all else.

It is nevertheless a mistake to presume that the only legal mechanism that protects freedom of speech in the United States is the First Amendment. This is because, as the Supreme Court has recognized, the federal courts do not possess a monopoly over the interpretation and enforcement of the rights to freedom of speech and press or the penumbral right of association. In its 1976 decision Hudgens v. NLRB , 5 the Court made clear that “statutory or common law may in some situations extend protection or provide redress against [efforts] to abridge . . . free expression” even when the First Amendment does not do so. 6 A few years later, in PruneYard Shopping Center v. Robins , 7 the Court similarly concluded that state constitutions might provide “rights in expression” that are “more expansive than those conferred by the Federal Constitution.” 8

The result is that speakers and listeners can, and sometimes do, receive more protection for their speech, press, and expressive association under state constitutional law, state and federal statutory law, and state common law than they do under the First Amendment. Although state constitutional law has proven to be less of an important source of free speech protection than some hoped or predicted after the PruneYard decision, 9 courts in New Jersey, California, and a number of other states have for many decades now interpreted state constitutional guarantees of expressive freedom to confer rights that the First Amendment does not confer. 10 More importantly, local, state, and federal legislators have over the course of the past two centuries enacted hundreds, perhaps even thousands, of laws that are intended to protect the same values and interests that the First Amendment protects. In some cases, legislators have also empowered regulatory agencies to do the same. To focus solely on the protection that the First Amendment provides is therefore to misunderstand how freedom of speech is actually understood and legally protected in the United States today. 11

This Article attempts to correct this misunderstanding — or, at least, to begin the process of doing so — by exploring both the genealogical roots and the present-day operation of what it calls the non–First Amendment law of freedom of speech. 12 The term refers to the many local, state, and federal laws that work to protect the same interests that the Free Speech and Press Clauses of the First Amendment protect. These laws do so not by simply enforcing the speech rights and speech-facilitating duties that the First Amendment requires, but by granting rights and imposing duties that the First Amendment does not require, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.

As I show in what follows, this body of non–First Amendment free speech law is extensive in its scope and significant in its effects. It also has deep roots in our regulatory traditions. In fact, the non–First Amendment free speech tradition is for all practical purposes older than the First Amendment tradition itself. In contrast to the First Amendment tradition, which began to emerge in its modern form only in the early decades of the twentieth century, legislatures acted to protect the interests that we today recognize the First Amendment as protecting beginning in the mid-eighteenth century, and continued to do so throughout the nineteenth and twentieth centuries in all sorts of ways.

This fact complicates the dominant narratives of the history of freedom of speech in the United States, which tend to depict the years prior to the early twentieth century as a period in which there was little legal protection for expressive freedom. 13 It is absolutely true that eighteenth- and nineteenth-century courts tended to interpret constitutional free expression guarantees to grant speakers and listeners few rights against the government. 14 But legislators proved much less insensitive to the need to protect expressive freedom, and the democratic freedoms that it enabled, against both government and private power than did the courts. Indeed, what we find during this period is significant and enduring legislative concern about the threat that the concentration of economic power produced by the increasing industrialization of the U.S. economy posed to the expressive freedom of the less powerful, as well as to the well-being of the institutional press. 15 The result was the creation of a rich body of nonconstitutional free speech law. To write legislative efforts to promote freedom of speech and press out of the history of freedom of speech in the United States is therefore to miss much of the story.

Paying attention to the non–First Amendment law of freedom of speech not only changes our understanding of the history of the free speech tradition in the United States, however. It also complicates our understanding of its present. This is because what it shows us is that the modern free speech tradition is considerably more pluralist in its conception of the right, and more majoritarian in its operation, than we are accustomed to recognizing.

In its First Amendment cases, the Court has articulated, since at least the 1940s, a strongly counter-majoritarian and court-centric conception of freedom of speech. It has argued that what the ratification of the First Amendment was intended to do was remove the question of what freedom of speech means from “the vicissitudes of political controversy” and transform it instead into “a legal principle to be applied by the courts.” 16 The Court has insisted, more generally, that the meaning of freedom of speech is not something that “may . . . be submitted to vote” or made to “depend on the outcome of . . . elections.” 17

The Court has never explained how its view of freedom of speech as a right whose meaning must “depend on the outcome of no elections” 18 coexists with its recognition that often popularly elected state courts and state and federal legislatures may grant rights of free expression that the First Amendment does not. 19 Nevertheless, scholars have largely accepted the Court’s claim that what freedom of speech means in the United States — at least as a legal matter — is what the First Amendment cases say it means. 20 But this is a mistake.

In fact, once we look beyond the First Amendment cases, what we find is significant debate, from the eighteenth and nineteenth centuries until today, about what freedom of speech means and requires. More than that: what we find are legal protections for speech and association that are based on a different conception of freedom of speech than that given voice in the First Amendment cases — one that is much more concerned with the threat that private economic power poses to expressive freedom, and much less laissez-faire in its understanding of the government’s responsibilities vis-à-vis the marketplace of ideas.

The non–First Amendment laws, policies, and judicial decisions chronicled in this Article do not, in other words, simply build on top of the federal constitutional “floor” — to use the famous metaphor that Justice Brennan developed to describe what he viewed as the ideal relationship between state and federal constitutional law. 21 Instead, they reflect and, in some cases, explicitly articulate a different view of how it is that the interests the First Amendment protects — chief among these, the interest in democratic flourishing, but also the interest in individual self-expression — should be realized. The result is a distinct and vibrant tradition of free speech law — and one that, as I show in what follows, is often quite difficult to reconcile with the principles that undergird the modern First Amendment cases.

Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. This is true even though the political and cultural power of the non–First Amendment body of free speech law has made the Court loath in many contexts to constrain its application, even when doing so is difficult to justify under existing First Amendment principles.

The result is an inconsistent body of free speech law that manages to reconcile the First Amendment and non–First Amendment free speech traditions only by implausibly denying in many cases that non–First Amendment free speech laws affect any significant free speech interests at all. This is a problem not only because it produces incoherent doctrinal distinctions but also because it permits the Court to proclaim a commitment to principles — in particular, the principle of free speech laissez-faire — that in reality it cannot sustain.

To craft a First Amendment doctrine that is capable of adequately protecting freedom of speech in our complex democratic society, it is necessary to first understand how that freedom of speech has in fact historically been protected. That is the task that this Article takes up. It proceeds in three parts. Part I explores the history and present operation of some of the laws that make up the non–First Amendment free speech tradition. Part II examines the implications of the non–First Amendment free speech tradition for how we think about the present, and the past, of freedom of speech in the United States. Finally, Part III argues that the failure of scholars to pay attention to the non–First Amendment free speech tradition has made it too easy for the Supreme Court to claim that the American free speech tradition is laissez-faire, when the reality is far more complicated.

* Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, the University of Chicago Law School. Thanks to Kate Andrias, Amy J. Cohen, Omar Kutty, Daphna Renan, Mike Seidman, Geoffrey Stone, Nelson Tebbe, Laura Weinrib, and participants at the University of Chicago Work-in-Progress Workshop, the Free Expression Scholars Conference at Yale University, and the American Constitutional Society Board of Academic Advisors Paper Workshop for helpful comments. A special thank you to Elisabeth Mayer, Lauren Nudelman, and Osama Alikhawaja for excellent research assistance, and to the superlative editors at the Harvard Law Review .

^ Although the text of the First Amendment distinguishes between the “freedom of speech” protected by the Free Speech Clause and the “freedom of press” protected by the Press Clause, in its First Amendment cases, the Court has generally refused to distinguish between the two. See Sonja R. West, Awakening the Press Clause , 58 UCLA L. REV. 1025, 1027–29 (2011). The result has been to make freedom of press and freedom of speech merely different ways of describing the same underlying bundle of rights. Although good arguments have been made for why it is a mistake to equate freedom of speech with freedom of press, for simplicity’s sake, and in order to better reflect how the terms are used in contemporary constitutional discourse, in this Article I do just that. References to freedom of speech should be understood to include the rights that might other-wise be understood, and historically were referred to, as freedom of press.

^ See Genevieve Lakier, Sport as Speech , 16 U . Pa. J. Const. L . 1109, 1111, 1114 (2014).

^ See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience , 117 Harv. L. Rev . 1765, 1790 (2004).

^ See, e.g ., Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 6 (Jamie Kalven ed., 1988) (referring to the First Amendment tradition as simply the “free speech tradition”); Owen M. Fiss, Essay, Free Speech and Social Structure , 71 Iowa L. Rev . 1405, 1405 (1986) (conflating Professor Kalven’s “free speech tradition” with First Amendment jurisprudence).

^ 424 U.S. 507 (1976).

^ Id . at 513.

^ 447 U.S. 74 (1980).

^ Id . at 81; see also id . at 88.

^ Julian N. Eule & Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse , 45 UCLA L. Rev . 1537, 1579 (1998).

^ See, e.g ., Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 749 (Cal. 2007); Green Party of N.J. v. Hartz Mountain Indus., Inc., 752 A.2d 315, 323 (N.J. 2000).

^ This Article leaves entirely undiscussed another, also extremely important, domestic free speech tradition: namely, the tradition of private self-regulation that promotes free speech values in schools and universities, in the private media, and in a variety of other institutional settings. Like the free speech laws documented in this Article, institutional free speech policies play an important role in promoting free speech values in contexts where the First Amendment does not do so, particularly in the private sphere. They also serve as the terrain on which important debates about the meaning of free speech occur. To fully understand how freedom of speech is imagined, contested, and protected in the United States, one would need therefore to understand the relationship between three important strands of free speech law — the First Amendment, the non–First Amendment, and the private. For purposes of space, however, I leave exploration of this important third strand of the American system of free expression for another day.

^ As will become evident, in what follows I provide only a cursory account of this capacious, contentious, and diverse body of free speech law. This Article is intended to open up exploration of this free speech tradition, not to provide the last word on it. In doing so, I follow the lead of two scholars who previously suggested, albeit in a much less fleshed-out form, the existence of a non–First Amendment free speech tradition. See Cynthia L. Estlund, Free Speech and Due Process in the Workplace , 71 Ind. L.J . 101, 107 (1995); Tim Wu, Brookings Inst., Is Filtering Censorship? The Second Free Speech Tradition 2 (2010), <a href=" https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition ">https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition">https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition [ https://perma.cc/7Y7S-465L ].

^ See, e.g ., Paul L. Murphy, The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR 4 (1972) (“In America, freedom of speech . . . [was] an operational reality largely outside the area of either legal definition or restriction from the adoption of the Bill of Rights until World War I. . . . [F]reedom of speech was treated as a dearly won prize, protected in a symbolic trophy case, but not used from day to day.”); Lawrence M. Friedman, Lecture, The Constitution and American Legal Culture , 32 St. Louis U. L.J . 1, 5–6 (1987) (noting that very few free speech cases reached the courts in the nineteenth century, and concluding that “structured controversy over the limits of free speech was largely absent as an overt political issue”).

^ See David M. Rabban, The First Amendment in Its Forgotten Years , 90 Yale L.J . 514, 523–24 (1981).

^ See, e.g ., infra p. 2320.

^ W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

^ See, e.g ., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980); Hudgens v. NLRB, 424 U.S. 507, 513 (1976).

^ The tendency to believe the Court that it has a monopoly over the meaning of the free speech right is as common among the critics of the modern First Amendment tradition as it is among those who believe the tradition to be a “worthy” one. See, e.g ., Louis Michael Seidman, Essay, Can Free Speech Be Progressive? , 118 Colum. L. Rev . 2219, 2220 (2018) (defining the American free speech tradition to mean the First Amendment tradition, and concluding that it both has not been and likely can never be progressive); see also Fiss, supra note 4, at 1405–08 (same).

^ William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights , 61 N.Y.U. L. Rev . 535, 550 (1986).

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America Has a Free Speech Problem

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values . It is separate from the newsroom.

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

How has this happened? In large part, it’s because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.

However you define cancel culture, Americans know it exists and feel its burden. In a new national poll commissioned by Times Opinion and Siena College , only 34 percent of Americans said they believed that all Americans enjoyed freedom of speech completely. The poll found that 84 percent of adults said it is a “very serious” or “somewhat serious” problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

This poll and other recent surveys from the Pew Research Center and the Knight Foundation reveal a crisis of confidence around one of America’s most basic values. Freedom of speech and expression is vital to human beings’ search for truth and knowledge about our world. A society that values freedom of speech can benefit from the full diversity of its people and their ideas. At the individual level, human beings cannot flourish without the confidence to take risks, pursue ideas and express thoughts that others might reject.

Most important, freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence.

We’ve excerpted a few of the poll’s other questions below. Choose your answers to see how your opinions compare to Americans’.

1. Over the past year, have you held your tongue because you were concerned about retaliation or harsh criticism?

Select an answer to see the poll’s results.

2. Over the past year, have you retaliated against or harshly criticized another person because of something he or she said?

3. How much of a problem is it that some Americans do not exercise their freedom of speech in everyday situations out of fear of retaliation or harsh criticism?

The Times Opinion/Siena College poll found that 46 percent of respondents said they felt less free to talk about politics compared to a decade ago. Thirty percent said they felt the same. Only 21 percent of people reported feeling freer, even though in the past decade there was a vast expansion of voices in the public square through social media.

“There’s a crisis around the freedom of speech now because many people don’t understand it, they weren’t taught what it means and why it matters,” said Suzanne Nossel, the chief executive of PEN America, a free speech organization. “Safeguards for free speech have been essential to almost all social progress in the country, from the civil rights movement to women’s suffrage to the current fights over racial justice and the police.”

Times Opinion commissioned the poll to provide more data and insight that can inform a debate mired in extremes. This editorial board plans to identify a wide range of threats to freedom of speech in the coming months and to offer possible solutions. Freedom of speech requires not just a commitment to openness and tolerance in the abstract. It demands conscientiousness about both the power of speech and its potential harms. We believe it isn’t enough for Americans to just believe in the rights of others to speak freely; they should also find ways to actively support and protect those rights.

We are under no illusion that this is easy. Our era, especially, is not made for this; social media is awash in speech of the point-scoring, picking-apart, piling-on, put-down variety. A deluge of misinformation and disinformation online has heightened this tension. Making the internet a more gracious place does not seem high on anyone’s agenda, and certainly not for most of the tech companies that control it.

But the old lesson of “think before you speak” has given way to the new lesson of “speak at your peril.” You can’t consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.

It is worth noting here the important distinction between what the First Amendment protects (freedom from government restrictions on expression) and the popular conception of free speech (the affirmative right to speak your mind in public, on which the law is silent). The world is witnessing, in Vladimir Putin’s Russia, the strangling of free speech through government censorship and imprisonment. That is not the kind of threat to freedom of expression that Americans face. Yet something has been lost; the poll clearly shows a dissatisfaction with free speech as it is experienced and understood by Americans today.

Consider this finding from our poll: Fifty-five percent of respondents said that they had held their tongue over the past year because they were concerned about retaliation or harsh criticism. Women were more likely to report doing so — 61 percent, compared to 49 percent of men. Older respondents were less likely to have done so than other age groups. Republicans (58 percent) were slightly more likely to have held their tongues than Democrats (52 percent) or independents (56 percent).

At the same time, 22 percent of adults reported that they had retaliated against or were harshly critical of someone over something he or she said. Adults 18 to 34 years old were far more likely to have done so than older Americans; liberals were more likely to have done so than moderates or conservatives.

Elijah Afere, a 25-year-old I.T. technician from Union, N.J., said that he worried about the larger implications of chilled speech for democracy. “You can’t give people the benefit of the doubt to just hold a conversation anymore. You’ve got to worry about feeling judged,” he said. “Political views can even affect your family ties, how you relate to your uncle or the other side. It’s really not good.”

Roy Block, 76, from San Antonio, described himself as conservative and said he has been alarmed by scenes of parents being silenced at school board meetings over the past year. “I think it’s mostly conservatives that are being silenced,” he said. “But regardless, I think it should be a two-way street. Everybody should have an opportunity to speak and especially in open gathering and open forum.”

1. Do you feel more free, less free or as free as you did before to express your viewpoint in most situations on a daily basis today than you did 10 years ago on politics?

2. Do you feel more free, less free or as free as you did before to express your viewpoint in most situations on a daily basis today than you did 10 years ago on race relations?

Pollsters asked how free people felt today to discuss six topics — including religion, politics, gender identity and race relations — compared to 10 years ago: more free, less free or the same. Those who felt freest were Black respondents: At least 30 percent of them said they felt more free to speak on every topic, including 42 percent on race relations, the highest share of any racial or ethnic group. Still, that sentiment of more freedom among Black respondents reached only 46 percent, not a majority (the 46 percent being on the issue of gender identity).

At the same time, a full 84 percent of Black people polled shared the concern of this editorial that it was a “very serious” or “somewhat serious” problem that some Americans do not exercise their freedom of speech out of fear of retaliation or harsh criticism. And 45 percent of Black people and nearly 60 percent of Latinos and white people polled reported that they’d held their tongues in the past year out of fear of retaliation or harsh criticism.

While the level of national anxiety around free speech is apparent, the solutions are much less clear. In the poll, 66 percent of respondents agreed with the following: “Our democracy is built upon the free, open and safe exchange of ideas, no matter how different they are. We should encourage all speech so long as it is done in a way that doesn’t threaten others.” Yet a full 30 percent agreed that “while I support free speech, sometimes you have shut down speech that is antidemocratic, bigoted or simply untrue.” Those who identified themselves as Democrats and liberals showed a higher level of support for sometimes shutting down such speech.

The full-throated defense of free speech was once a liberal ideal. Many of the legal victories that expanded the realm of permissible speech in the United States came in defense of liberal speakers against the power of the government — a ruling that students couldn’t be forced to recite the Pledge of Allegiance, a ruling protecting the rights of students to demonstrate against the Vietnam War, a ruling allowing the burning of the American flag.

And yet many progressives appear to have lost faith in that principle. This was a source of great frustration for one of those who responded to our poll, Emily Leonard, a 93-year-old from Hartford, Conn., who described herself as a liberal. She said she was alarmed about reports of speakers getting shouted down on college campuses. “We need to hear what people think, even though we disagree with them. It is the basis of our democracy. And it’s absolutely essential to a continuing democracy,” she said. “Liberal as I am — a little to the left of Lenin — I think these kids and this whole cancel culture and so-called woke is doing us so much harm. They’re undermining the Constitution. That’s what it comes down to.”

The progressive movement in America has been a force for good in many ways: for social and racial justice, for pay equity, for a fairer system and society and for calling out hate and hate speech. In the course of their fight for tolerance, many progressives have become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness that the right long displayed and the left long abhorred. It has made people uncertain about the contours of speech: Many know they shouldn’t utter racist things, but they don’t understand what they can say about race or can say to a person of a different race from theirs. Attacking people in the workplace, on campus, on social media and elsewhere who express unpopular views from a place of good faith is the practice of a closed society.

The Times does not allow hate speech in our pages, even though it is broadly protected by the Constitution, and we support that principle . But there is a difference between hate speech and speech that challenges us in ways that we might find difficult or even offensive.

At the same time, all Americans should be deeply concerned about an avalanche of legislation passed by Republican-controlled legislatures around the country that gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.

It goes far beyond conservative states yanking books about race and sex from public school libraries . Since 2021 in 40 state legislatures, 175 bills have been introduced or prefiled that target what teachers can say and what students can learn, often with severe penalties. Of those, 13 have become law in 11 states, and 106 are still under consideration. All told, 99 bills currently target K-12 public schools, 44 target higher education, and 59 include punishment for violators, according to a running tally kept by PEN America . In some instance s, the proposed bills failed to become law. In other cases, the courts should declare them unconstitutional.

These bills include Florida’s “Don’t Say Gay” bill , which would restrict what teachers and students can talk about and allows for parents to file lawsuits. If the law goes into force, watch for lawsuits against schools that restrict the free speech rights of students to discuss things like sexuality, established by earlier Supreme Court rulings.

The new gag laws coincide with a similar barrage of bills that ostensibly target critical race theory, an idea that has percolated down from law schools to the broader public in recent years as a way to understand the pervasiveness of racism. The moral panic around critical race theory has morphed into a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive. Several states have now passed these gag laws restricting what can be said in public schools, colleges and universities, and state agencies and institutions.

In passing laws that restrict speech, conservatives have adopted the language of harm that some liberals used in the past to restrict speech — the idea that speech itself can cause an unacceptable harm, which has led to a proliferation of campus speech codes and the use of trigger warnings in college classrooms.

Now conservatives have used the idea of harmful speech to their own ends: An anti-critical-race-theory law in Tennessee passed last year , for instance, prohibits promoting the concept that “an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex” — a measure aimed at avoiding the “distress” that students might feel when learning about racist or misogynist elements of American history. (Unmentioned, of course, is the potential discomfort felt by students who are fed a whitewashed version of American history.)

Liberals — and anyone concerned with protecting free speech — are right to fight against these pernicious laws. But legal limits are not the only constraints on Americans’ freedom of speech. On college campuses and in many workplaces, speech that others find harmful or offensive can result not only in online shaming but also in the loss of livelihood. Some progressives believe this has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.

Free speech is predicated on mutual respect — that of people for one another and of a government for the people it serves. Every day, in communities across the country, Americans must speak to one another freely to refine and improve the elements of our social contract: What do we owe the most vulnerable in our neighborhoods? What conduct should we expect from public servants? What ideas are so essential to understanding American democracy that they should be taught in schools? When public discourse in America is narrowed, it becomes harder to answer these and the many other urgent questions we face as a society.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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An earlier version of this editorial mischaracterized a Tennessee law banning the teaching of critical race theory. It prohibits promoting the concept that “an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex.” It does not ban lesson plans that could cause students distress.

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AI chatbots refuse to produce ‘controversial’ output − why that’s a free speech problem

Research Fellow and Visiting Scholar of Political Science, Vanderbilt University

Research Professor of Political Science, Vanderbilt University

Disclosure statement

Jordi Calvet-Bademunt is affiliated with The Future of Free Speech. The Future of Free Speech is a non-partisan, independent think tank that has received limited financial support from Google for specific projects. However, Google did not fund the report we refer to in this article. In all cases, The Future of Free Speech retains full independence and final authority for its work, including research pursuits, methodology, analysis, conclusions, and presentation.

Jacob Mchangama is affiliated with The Future of Free Speech. The Future of Free Speech is a non-partisan, independent think tank that has received limited financial support from Google for specific projects. However, Google did not fund the report we refer to in this article. In all cases, The Future of Free Speech retains full independence and final authority for its work, including research pursuits, methodology, analysis, conclusions, and presentation.

Vanderbilt University provides funding as a founding partner of The Conversation US.

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Google recently made headlines globally because its chatbot Gemini generated images of people of color instead of white people in historical settings that featured white people . Adobe Firefly’s image creation tool saw similar issues . This led some commentators to complain that AI had gone “woke .” Others suggested these issues resulted from faulty efforts to fight AI bias and better serve a global audience .

The discussions over AI’s political leanings and efforts to fight bias are important. Still, the conversation on AI ignores another crucial issue: What is the AI industry’s approach to free speech, and does it embrace international free speech standards?

We are policy researchers who study free speech , as well as executive director and a research fellow at The Future of Free Speech , an independent, nonpartisan think tank based at Vanderbilt University. In a recent report, we found that generative AI has important shortcomings regarding freedom of expression and access to information.

Generative AI is a type of AI that creates content , like text or images, based on the data it has been trained with. In particular, we found that the use policies of major chatbots do not meet United Nations standards. In practice, this means that AI chatbots often censor output when dealing with issues the companies deem controversial. Without a solid culture of free speech, the companies producing generative AI tools are likely to continue to face backlash in these increasingly polarized times.

Vague and broad use policies

Our report analyzed the use policies of six major AI chatbots, including Google’s Gemini and OpenAI’s ChatGPT. Companies issue policies to set the rules for how people can use their models. With international human rights law as a benchmark, we found that companies’ misinformation and hate speech policies are too vague and expansive. It is worth noting that international human rights law is less protective of free speech than the U.S. First Amendment.

Our analysis found that companies’ hate speech policies contain extremely broad prohibitions. For example, Google bans the generation of “content that promotes or encourages hatred.” Though hate speech is detestable and can cause harm, policies that are as broadly and vaguely defined as Google’s can backfire.

To show how vague and broad use policies can affect users, we tested a range of prompts on controversial topics. We asked chatbots questions like whether transgender women should or should not be allowed to participate in women’s sports tournaments or about the role of European colonialism in the current climate and inequality crises. We did not ask the chatbots to produce hate speech denigrating any side or group. Similar to what some users have reported , the chatbots refused to generate content for 40% of the 140 prompts we used. For example, all chatbots refused to generate posts opposing the participation of transgender women in women’s tournaments. However, most of them did produce posts supporting their participation.

Vaguely phrased policies rely heavily on moderators’ subjective opinions about what hate speech is. Users can also perceive that the rules are unjustly applied and interpret them as too strict or too lenient.

For example, the chatbot Pi bans “content that may spread misinformation.” However, international human rights standards on freedom of expression generally protect misinformation unless a strong justification exists for limits, such as foreign interference in elections. Otherwise, human rights standards guarantee the “ freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers … through any … media of … choice,” according to a key United Nations convention.

Defining what constitutes accurate information also has political implications. Governments of several countries used rules adopted in the context of the COVID-19 pandemic to repress criticism of the government. More recently, India confronted Google after Gemini noted that some experts consider the policies of the Indian prime minister, Narendra Modi, to be fascist.

Free speech culture

There are reasons AI providers may want to adopt restrictive use policies. They may wish to protect their reputations and not be associated with controversial content. If they serve a global audience, they may want to avoid content that is offensive in any region.

In general, AI providers have the right to adopt restrictive policies. They are not bound by international human rights. Still, their market power makes them different from other companies. Users who want to generate AI content will most likely end up using one of the chatbots we analyzed, especially ChatGPT or Gemini.

These companies’ policies have an outsize effect on the right to access information. This effect is likely to increase with generative AI’s integration into search , word processors , email and other applications.

This means society has an interest in ensuring such policies adequately protect free speech. In fact, the Digital Services Act , Europe’s online safety rulebook, requires that so-called “very large online platforms” assess and mitigate “systemic risks.” These risks include negative effects on freedom of expression and information.

This obligation, imperfectly applied so far by the European Commission, illustrates that with great power comes great responsibility. It is unclear how this law will apply to generative AI, but the European Commission has already taken its first actions .

Even where a similar legal obligation does not apply to AI providers, we believe that the companies’ influence should require them to adopt a free speech culture. International human rights provide a useful guiding star on how to responsibly balance the different interests at stake. At least two of the companies we focused on – Google and Anthropic – have recognized as much.

Outright refusals

It’s also important to remember that users have a significant degree of autonomy over the content they see in generative AI. Like search engines, the output users receive greatly depends on their prompts. Therefore, users’ exposure to hate speech and misinformation from generative AI will typically be limited unless they specifically seek it.

This is unlike social media, where people have much less control over their own feeds. Stricter controls, including on AI-generated content, may be justified at the level of social media since they distribute content publicly. For AI providers, we believe that use policies should be less restrictive about what information users can generate than those of social media platforms.

AI companies have other ways to address hate speech and misinformation. For instance, they can provide context or countervailing facts in the content they generate. They can also allow for greater user customization. We believe that chatbots should avoid merely refusing to generate any content altogether. This is unless there are solid public interest grounds, such as preventing child sexual abuse material, something laws prohibit.

Refusals to generate content not only affect fundamental rights to free speech and access to information. They can also push users toward chatbots that specialize in generating hateful content and echo chambers. That would be a worrying outcome.

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More than 30 Harvard Law School faculty signed onto a statement affirming their “commitment to protecting student speech” after some HLS student groups have been investigated for hosting gatherings in student spaces.

The statement called for the protection of student speech from “unreasonably expansive and historically unfounded interpretations of protest guidelines,” referring to “discriminatory enforcement of rules and viewpoint discrimination” from the administration. The letter was published Monday in the Harvard Law Record, an independent student newspaper at HLS.

HLS spokesperson Jeff Neal declined to comment for this article.

The Monday statement was part of a larger package addressed to the HLS administration and the University’s leadership. The presidents of HLS’s American Constitutional Society and the Federalist Society also sent a joint letter to interim HLS Dean John C.P. Goldberg.

Harvard Law professor Nikolas Bowie then issued a companion letter contextualizing the faculty statement and joint letter.

The package comes at a time when Harvard Law professors have publicly debated academic freedom and students have faced public retribution for voicing their opinions.

In emails to The Crimson, several HLS professors cited Bowie as one of the main forces behind the faculty letter.

In his companion letter, Bowie pointed to recent investigations and disciplinary actions HLS administrators have taken against student groups participating in campus activism. Some have gathered in the Caspersen Student Center lounge — a room historically used for student organizing , including against Brett Kavanaugh’s Supreme Court nomination and the University’s investment in fossil fuels, according to Bowie.

Some HLS affiliates have dubbed the room “Belinda Hall” in honor of Belinda Sutton, who was enslaved by a prominent Massachusetts family whose donation in 1781 funded the Law School’s first professorship.

But unlike past student protests, Bowie wrote in his open letter, “recent invocations of Palestine have inspired a novel clampdown by the law school that is doing little to stop the protests but much to threaten Belinda’s character as a space for all students.”

Bowie wrote that University administrators have recently accused student organizers of violating a 1970 Harvard policy that prohibits “interference with members of the University in performance of their normal duties and activities.”

“I have now seen graceless attempts at suppressing students in Belinda for the first time because they are demanding an end to a genocide against Palestinians,” he wrote.

In particular, Bowie wrote about a February HLS’s Women’s Law Association event, during which students wrote Valentine’s Day cards to residents of a memory care center. Later, administrators in the dean of students’ office contacted organizers of the event because they “wanted to interrogate whomever was responsible.”

“Without realizing it, the card writers had joined a growing number of students who law school administrators have recently begun investigating, warning, or even threatening with formal discipline for gathering in Belinda Hall,” he wrote.

Bowie added that members of HLS’s Women’s Law Association told him they felt they received “unwarranted prosecution by the law school” for their event that pro-Palestinian student organizers later modeled their own after. After the second, pro-Palestine event was disrupted by HLS administration, the WLA was retroactively questioned for their “unchallenged” event.

“Rather than concede the inconsistency, law school administrators simply expanded their dragnet to intimidate the WLA and everyone else from using Belinda for gathering, too,” Bowie wrote. “At the same time, it’s no secret to them, me, or anyone else why they’re being investigated: Palestine.”

The joint letter from the HLS Federalist Society President Benjamin Pontz and American Constitutional Society President Morgan Sperry — which accompanied Bowie’s letter — acknowledged that they were writing as “the leaders of two organizations that have done little together over the past three years” to express their “shared belief that freedom of expression must lie at the core of Harvard Law School’s pursuit of truth and justice.”

The HLS Federalist Society describes itself as a “group of conservative and libertarian law students” that seeks to “foster balanced and open debate about the fundamental principles of individual freedom, limited government, and judicial restraint.” The American Constitution Society is a student organization that “promotes progressive legal change” in order to “realize economic and social justice and secure democratic freedoms,” according to their website.

“The law school should not use student conduct policies to protect law students from hearing what their peers want to see and do in the world,” Pontz and Sperry wrote in the joint letter.

“Any law school conduct policies that operate in service of any value other than protecting truth-seeking, open debate, academic freedom, and civic engagement are inappropriate,” they added.

—Staff writer S. Mac Healey can be reached at [email protected] . Follow him on X @MacHealey .

—Staff writer Saketh Sundar can be reached at [email protected]. Follow him on X @saketh_sundar .

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Elon Musk picks his speech battle

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Though Elon Musk often insists his goal with X is to promote free speech, his actions have rarely been those of the “ free-speech absolutist ” he once claimed to be. Yes, he has rolled back the social platform’s policies on hate speech, cut back on content moderation and reinstated banned extremists under the free-speech banner. But he has also made up rules to ban accounts he doesn’t like, suspended journalists and sued nonprofit advocacy groups in what one judge ruled was a bid to silence critics . 

In the United States, the First Amendment and Section 230 of the Communications Decency Act give X a free hand to moderate or tolerate speech as it sees fit. And while many on the left have decried Musk’s policies, they’ve been widely cheered on the right. But it’s worth remembering that most X users are not American. And other countries have their own speech laws, some of them much more restrictive. 

Since acquiring Twitter, which once prided itself on protecting dissidents abroad, Musk has proved unusually compliant when it comes to government censorship and surveillance requests.

In April 2022, Musk tweeted what seemed to be his clearest definition yet of what “free speech” means to him in the context of social media, saying it’s simply “that which matches the law.” 

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people. — Elon Musk (@elonmusk) April 26, 2022

While Musk hasn’t always held true to that principle domestically, he has generally adhered to it overseas. In India, for example, X agreed to block links to a BBC documentary that cast a critical lens on Indian Prime Minister Narendra Modi , and it has since capitulated to systematic censorship there. In Turkey, the company restricted tweets at the behest of President Recep Tayyip Erdogan on the eve of a critical election. Musk defended both decisions on the grounds that X had no choice but to comply .

In fact, as of a year ago, Rest of World reported that the company had not refused a single censorship request since Musk took over.

In recent days, however, he has dug in for a high-stakes battle in Brazil that shows he is willing to take a stand against foreign governments — if the speech of right-wing activists is at stake.

The standoff is over orders from Brazilian Supreme Court Justice Alexandre de Moraes to block a number of accounts for “spreading anti-democratic ideas that undermine the Brazilian democratic state.” As my colleagues Niha Masih and María Luisa Paúl reported, those include far-right figures allied with former president Jair Bolsonaro , whose supporters stormed Brazilian government buildings on Jan. 8, 2023, following Bolsonaro’s electoral defeat. 

On Saturday, Musk posted on X that the platform was defying those orders and “lifting all restrictions” on the accounts in question. “This judge has applied massive fines, threatened to arrest our employees and cut off access to X in Brazil,” Musk wrote, referring to Moraes. “As a result, we will probably lose all revenue in Brazil and have to shut down our office there. But principles matter more than profit.”

As foreign markets go, Brazil is no small potatoes. It is one of X’s largest markets outside the United States, and it plays a similar role there, with politicians and activists using it as a megaphone and water cooler to debate public issues. So Musk really is risking X’s business. But where did those principles come from all of a sudden?

Musk’s showdown with Brazil’s Moraes comes after a “Twitter Files” installment that detailed how Moraes and other Brazilian officials pressured social media companies to remove content. 

As I wrote when Musk’s handpicked journalists began publishing the Twitter Files in late 2022, they have helped Musk justify his takeover of Twitter by casting him as a crusader exposing the “censorship” of the company’s previous leadership. Focusing almost exclusively on content moderation against conservatives, they have also helped endear him to Republicans, providing them fodder with which to sue the Biden administration and pressure disinformation researchers.

For Musk and his backers on the right, Brazil presents a parallel scenario in which a liberal government is trying to hold its populist-right predecessor to account for attempting to subvert a democratic election. 

Still, Musk’s own credo would seem to imply that he should be complying with Brazil’s laws.

In Musk’s 2022 defining of free speech, he added that “If people want less free speech, they will ask government to pass laws to that effect.” Brazil’s laws do in fact allow for government restrictions on certain kinds of speech . The country became a democracy only in 1985, after decades of authoritarian rule, and its leaders regard that democracy as fragile — especially in the wake of the 2023 insurrection, which was fueled partly via social media . Accordingly, for better or worse, the country is now cracking down on speech it deems a threat to that democracy. 

One can argue those laws go too far or give the government too much power to silence its opposition, said Thiago de Aragão , a senior associate with the Center for Strategic and International Studies who advises companies on risks in Latin America. But he said it’s hard to see Musk’s stand as principled, given how he has gone about it.

“It would be more understandable if he had exhausted all legal means and lost,” de Aragão said. “Instead he’s beginning from the end” by publicly defying the orders and even calling Moraes “a dictator” who has Brazil’s president “on a leash.” 

That suggests Musk’s real motive is to provoke a confrontation that serves his own ends, de Aragão said.

“Personally, I believe he actually wants very much for Moraes to ban [X] at least temporarily, because that would crown and legitimate his narrative” that he’s “a champion of free speech.”

Agency scanner

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Hill happenings

Children’s online safety legislation gains champions in House (Bloomberg Government)

Inside the industry

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Meta’s Nick Clegg plays down AI’s threat to global democracy (The Guardian)

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AI race heats up as OpenAI, Google and Mistral release new models (The Guardian)

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WordPress owner buys Beeper, app that enabled iMessage on Android (Bloomberg)

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YouTube is the most consequential technology in America (By Shira Ovide)

• Georgetown University Law School holds an event , “Global Perspectives on AI Governance,” today at 3 p.m.
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• The Knight-Georgetown Institute hosts an event , “Burning Questions: Online Deception and Generative AI,” Thursday at 11 a.m.
• The House Energy and Commerce Committee holds a hearing , “Where Are We Now: Section 230 of the Communications Decency Act of 1996,” on Thursday at 1 p.m.

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This chart would have been unimaginable just a few years ago pic.twitter.com/hFF5dj5Rmg — Joe Pompliano (@JoePompliano) April 9, 2024

That ’ s all for today — thank you so much for joining us! Make sure to tell others to subscribe to  The Technology 202 here . Get in touch with Cristiano (via email or social media ) and Will (via email or social media ) for tips, feedback or greetings!

Will Cambridge Support Free Speech?

The university is investigating Nathan Cofnas, a research fellow who published a blog post advocating “race realism.” Were Cofnas to be dismissed, it would sound a warning to students and academics everywhere: even the world’s most renowned universities may no longer stand by their commitment to freedom of thought and discussion.

MELBOURNE – Nathan Cofnas is a research fellow in the Faculty of Philosophy at the University of Cambridge. His research is supported by a grant from the Leverhulme Trust. He is also a college research associate at Emmanuel College. Working at the intersection of science and philosophy, he has published several papers in leading peer-reviewed journals. He also writes popular articles and posts on Substack .

In January, Cofnas published a post called “ Why We Need to Talk about the Right’s Stupidity Problem .” No one at Cambridge seems to have been bothered by his argument that people on the political right have, on average, lower intelligence than those on the left.

Some people at Cambridge were, however, very much bothered by Cofnas’s February post, “ A Guide for the Hereditarian Revolution .” To follow Cofnas’s “guide,” one must accept “race realism”: the view that heredity plays a role in the existing social and economic differences between different demographic groups. Only by challenging the taboo against race realism, Cofnas believes, can conservatives overcome “wokism,” which he sees as a barrier to understanding the causes of inequality and to allowing people to succeed on the basis of merit.

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What to know about Elon Musk’s ‘free speech’ feud with a Brazilian judge

FILE - Elon Musk appears at an event in London, on Nov. 2, 2023. A crusading Brazilian Supreme Court justice included Musk as a target in an ongoing investigation over the dissemination of fake news and opened a separate investigation late Sunday, April 7, 2024, into the executive for alleged obstruction. (AP Photo/Kirsty Wigglesworth, Pool, File)

FILE - President of the Superior Electoral Court, Judge Alexandre de Moraes, speaks during the inauguration of the Center for Combating Disinformation and Defense of Democracy in Brasilia, Brazil, March 12, 2024. The Brazilian Supreme Court justice has included Elon Musk as a target in an ongoing investigation into digital militas, according to a copy of Moraes’ decision issued late Sunday, April 7. (AP Photo/Eraldo Peres, File)

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SAO PAULO (AP) — Headline-grabbing billionaire Elon Musk is clashing with a Supreme Court justice in Brazil over free speech, far-right accounts and misinformation on X, the social media platform Musk bought when it was Twitter.

Since his takeover, Musk has upended many of Twitter’s policies, gutted its staff and transformed what people see on the site. As its owner and perhaps most influential user, he’s also used it to try to sway political discourse around the world. His latest entanglement is inside the nation of 203 million people that has the largest population and economy in South America.

The South Africa-born CEO of Tesla and SpaceX bought Twitter in 2022 and declares himself a “free speech absolutist.” To his critics, it’s absolutism with a political slant. He reinstated previously banned accounts such as the conspiracy theorist Alex Jones and former U.S. President Donald Trump, as well as accounts belonging to neo-Nazis and white supremacists. Advertisers who halted spending on X in response to antisemitic and other hateful material were engaging in “blackmail,” Musk has alleged.

In the United States, free speech is a constitutional right that’s much more permissive than in many countries, including Brazil, where Supreme Court Justice Alexandre de Moraes this month ordered an investigation into Musk over the dissemination of defamatory fake news and another probe over possible obstruction, incitement and criminal organization.

WHAT ACCOUNTS HAS BRAZIL BLOCKED?

In Brazil, judges can order any site to remove content. Some decisions are sealed from the public.

Neither Brazilian courts nor X have disclosed the list of accounts that have been ordered to stop publishing, but prominent supporters of former President Jair Bolsonaro and far-right activists no longer appear on the platform.

Some belong to a network known as “digital militias.” They were targeted by a five-year investigation overseen by de Moraes, initially for allegedly spreading defamatory fake news and threats against Supreme Court justices, and then after Bolsonaro’s 2022 loss for inciting demonstrations across the country that were pushing to overturn President Luiz Inácio Lula da Silva’s election.

WHO IS JUSTICE DE MORAES?

De Moraes is unmistakeable, with his bald head, athletic build and sweeping black robe. In his escalating attacks on the judge, Musk called him “Brazil’s Darth Vader.”

Whether investigating former President Jair Bolsonaro , banishing his far-right allies from social media, or ordering the arrest of supporters who stormed government buildings on Jan. 8, 2023 , Moraes has aggressively pursued those he views as undermining Brazil’s young democracy .

Days after a mob stormed Brazil’s capital, de Moraes ordered Facebook, Twitter, Telegram, TikTok and Instagram to block the accounts of individuals accused of inciting or supporting attacks on Brazilian democratic order.

FILE - President of the Superior Electoral Court, Judge Alexandre de Moraes, speaks during the inauguration of the Center for Combating Disinformation and Defense of Democracy in Brasilia, Brazil, March 12, 2024. (AP Photo/Eraldo Peres, File)

HOW DID FREE SPEECH BECOME A CAUSE FOR BRAZIL’S FAR RIGHT?

Brazil’s political right has long characterized de Moraes as muzzling free speech and engaging in political persecution. Lawmakers from Bolsonaro’s circle have been imprisoned and his supporters’ homes raided.

Bolsonaro himself became a target of the digital militias investigation in 2021. That was partly because he was casting unfounded doubt on Brazil’s electronic voting system. That year, he also told a massive rally that he would no longer comply with de Moraes’ decisions, pushing Brazil to the brink of institutional crisis .

WHAT’S MUSK’S ROLE?

Far-right X users have been trying to involve Musk in Brazilian politics for years, said Bruna Santos, lawyer and campaign manager at nonprofit Digital Action.

“They often tag him, asking him to take a stand on Moraes,” she said.

On Saturday, he did, republishing a post from X’s Global Government Affairs, tagging de Moraes and writing: “Why are you doing this @alexandre?”

Musk posted Saturday that reinstating the accounts — most of which apparently are blocked only in Brazil — will “probably” lead the social media platform to dry up revenue in Brazil and force the company to shutter its local office.

In his decision to investigate Musk, de Moraes accused him of waging a public “disinformation campaign” about the top court’s actions.

IS MUSK A ‘FREE SPEECH ABSOLUTIST’?

While Musk has railed against what he perceives as the censorship of certain viewpoints by Twitter’s previous administration, he’s also tried to silence critics he doesn’t agree with, including journalists and nonprofits reporting on his companies.

Musk had accused the journalists in late 2022 of sharing private information about his whereabouts that he described as “basically assassination coordinates.” He provided no evidence for that claim, though earlier Musk decided to permanently ban an account that automatically tracked the flights of his private jet using publicly available data.

Last month, a federal judge dismissed a lawsuit by X against the non-profit Center for Countering Digital Hate, which has documented the increase in hate speech on the site since it was acquired by the Tesla owner.

X had argued the center’s researchers violated the site’s terms of service by improperly compiling public tweets, and that its subsequent reports on the rise of hate speech cost X millions of dollars when advertisers fled.

But U.S. District Court Judge Charles Breyer dismissed the suit, writing in his order that it was “unabashedly and vociferously about one thing,” punishing the nonprofit for its speech.

HOW BIG IS X IN BRAZIL?

Brazil is a key market for X and other platforms. About 40 million Brazilians, or about 18% of the population, access X at least once per month, according to the market research group eMarketer.

Twitter closed offices and laid off employees in Brazil in 2022 after Musk bought the company. It is not clear how many employees X has in Brazil.

X’s legal representatives in Brazil, law firm Pinheiro Neto, declined to comment. X did not respond to a message for comment.

WHAT HAPPENS NEXT?

That depends on Musk and X’s actions. If they reinstate the accounts in Brazil, the company will face fines — at least. While fines have generally not phased Musk, experts say they could increase and X could even face suspension.

“The fines could escalate, eventually leading to the platform’s suspension. But this is always the last measure, as it harms other users in Brazil,” said Filipe Medon, a data privacy lawyer and professor at the Getulio Vargas Foundation.

Regarding Musk — a foreign citizen with a company based in the U.S. — any measures from Brazilian authorities would demand legal cooperation with U.S. authorities.

Ortutay reported from San Francisco, California.

This story has been corrected to reflect that free speech is a constitutional right in Brazil.

HYPOTHESIS AND THEORY article

This article is part of the research topic.

Insights in Sociological Theory: 2022

Public Discourse and Wilful Incommensurability A Case for Attentive Free Speech Provisionally Accepted

• 1 Association for Baha'i Studies, Canada
• 2 Nipissing University, Canada
• 3 Department of Sociology and Anthropology, Canada

The final, formatted version of the article will be published soon.

Many thinkers lament the decline of liberal democracy. Some argue that, to rejuvenate it, we must think big. Thinking big involves generating new ideas about how to achieve an unprecedented level of social transformation aimed at cultivating solidarity, empowering citizen efficacy, and promoting the common good. We propose that fundamental to such a transformation must be a radical change in how people speak to one another. To this end, the primary objective of this paper is to offer a framework for understanding how speech currently erodes democratic engagement. The central idea is that much of speech today both reflects and perpetuates a culture of wilful incommensurability. The core features of this culture are totalizing safetyism, expressive safetyism, dismissive intransigence, and polarized alienation, all of which have been worsened by the current trajectory of social media. The result is that people are increasingly prone to engage in degraded free speech, which is characterized by a pervasive aversion to reach out, identify points of unity, benefit from diverse perspectives, and discover truth in all its potential complexity. In view of this diagnosis and the response of those who advocate for freedom of speech, a second objective of this paper is to introduce the concept of attentive free speech. Attentive free speech has similarities with civil discourse but is specifically characterized by discernment and thoughtfulness and is imbued with key dispositions such as courage, reverence, and love. We end by inviting future research into how such speech can promote the social and spiritual health of the public sphere and freedom itself at a practical level.

Keywords: Wilful incommensurability, degraded free speech, attentive free speech, liberal democracy, public discourse, consultative epistemology

Received: 02 Mar 2023; Accepted: 16 Apr 2024.

Copyright: © 2024 Smith and Kelly. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY) . The use, distribution or reproduction in other forums is permitted, provided the original author(s) or licensor are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.

* Correspondence: Dr. Todd O. Smith, Association for Baha'i Studies, Ottawa, Canada Dr. Benjamin W. Kelly, Nipissing University, North Bay, P1B 8L7, Ontario, Canada

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