freedom of speech should be limited essay

THE ALGONQUIN HARBINGER

• Limitations are necessary for freedom of speech

Meredith Wu

Staff writer Verina Hanna reminds that the freedom of speech is not an excuse for harmful language and words.

Verina Hanna , Staff Writer March 17, 2022

More than once in a classroom, I’ve seen students picking on someone who didn’t even bother them. When someone tells them what they’re doing is rude, they generally reply saying, “I can say whatever I want. The freedom of speech protects me!” 

Is that right? Can people say whatever they want? Yes, freedom of speech gives people the right to say what they think, but what if what they say hurts millions of people or even just one person? Then is freedom of speech still protecting people?

The First Amendment in the Bill of Rights reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This amendment does not mean people have the right to harm one another with their speech; it actually means the government can not jail, fine or impose civil liability on people or organizations based on what they say or write. Therefore, yes, the government can’t stop you, but that doesn’t mean that you can go out and say whatever you want and not get consequences. 

Many people believe that freedom of speech is exactly how it sounds—that it gives them the right to say anything they want, anytime they want—but this is not the reality. There are limitations to this freedom. 

The limitations of the freedom of speech are based on time, place and manner, regardless of the point of view. They are restrictions that balance other rights. For example, speech that significantly disrupts the school environment or infringes on the rights of others may be prohibited by schools. Many courts have ruled that school officials have the authority to limit obscene student speech.

The limitations of the freedom of speech are based on time, place and manner, regardless of the point of view. They are restrictions that balance other rights.

— Verina Hanna

There have been many court cases that have determined how far the freedom of speech should go. According to The First Amendment Encyclopedia , the Supreme Court determined in Tinker v. Des Moines Independent Community School District (1969) that public school officials cannot limit student expression unless they can reasonably predict that it will severely disrupt school activities or infringe on others’ rights. However, in Bethel School District No. 403 v. Fraser (1986), the Supreme Court held that when a student was reprimanded for making a lewd and vulgar speech at a school assembly, school officials did not violate his free expression and due process rights. So this shows that, yes, people do have the freedom of speech but there is a limit that cannot be passed when the speech is offensive or demonstrably harmful to others.

People can’t go around saying what they think all the time when that speech infringes on others’ rights. There needs to be a limit for what people do say, where people say it, when people say it and even, in some cases, what it is about. 

People might say that the First Amendment doesn’t take sides. Some people claim that making restrictions for putting limitations on the freedom of speech will only make the freedom of speech seem biased or unfair.  However, I believe that even though we do have freedom of speech in the United States, people should recognize and respect this right’s limitations. Just because a person has the right to speak does not mean they have the right to use that power to hurt others.

Words are very powerful. What we say can affect people, change people, hurt people, encourage people and give hope. There is nothing wrong with supporting people or making someone’s day. 

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Jay • Jan 24, 2024 at 2:04 pm

very much goodie read

Dingle cringle berry • Jan 16, 2024 at 6:08 pm

kai • Jan 16, 2024 at 4:40 pm

pablo martinez • Dec 8, 2023 at 9:38 am

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trad • Jan 30, 2023 at 6:05 pm

yay • Mar 10, 2023 at 12:06 pm

John Kadis • Jan 2, 2023 at 10:21 pm

I agree. Indeed this is the best article.

shahraib • Oct 6, 2022 at 5:10 am

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Justifying Limitations on the Freedom of Expression

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• Published: 01 November 2020
• Volume 22 , pages 91–108, ( 2021 )

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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

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Introduction

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.

One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.

The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

The Value of the Freedom of Expression

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).

Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.

The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.

On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).

The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.

The Proportionality Test

Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.

In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.

A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto   sensu  ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).

Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).

A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.

At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.

This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).

At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.

The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.

A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.

First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.

Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto   sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.

The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.

The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).

Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.

Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.

A Duty-Based Justificatory Approach

The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.

Duties of Justice

The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).

Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.

What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.

Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.

A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.

The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.

A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.

A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.

An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.

A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.

Is the Language of Duties Dangerous?

The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).

Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.

Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.

In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.

Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.

There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.

Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)

‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

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Acknowledgements

The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.

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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

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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

This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first, and best, defenses of free speech based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle.

1. Introduction: Boundaries of the Debate

2.1 john stuart mill's harm principle, 2.2 mill's harm principle and pornography, 2.3 mill's harm principle and hate speech, 3.1 joel feinberg's offense principle, 3.2 pornography and the offense principle, 3.3 hate speech and the offense principle, 4.1 democratic citizenship and pornography, 4.2 democratic citizenship and hate speech, 4.3 paternalistic justification for limiting speech, 5. back to the harm principle, 6. conclusion, bibliography, other internet resources, related entries.

The topic of free speech is one of the most contentious issues in liberal societies. If the liberty to express oneself is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech. Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, “free speech in short, is not an independent value but a political prize” (1994,102). No society has yet existed where speech has not been limited to some extent. As John Stuart Mill argued in On Liberty , a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former:

All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed—by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to the value we place on other important ideals: “speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good” (Fish, 1994, 104). In this essay, we will examine some conceptions of the good that are deemed to be acceptable limitations on speech. We will start with the harm principle and then move on to other more encompassing arguments for limiting speech.

Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the “slippery slope.” Those who support the slippery slope argument warn that the consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should never allow any removal of government intervention because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as “solitary, poore, nasty, brutish, and short” (1968, 186).

Another thing to note before we engage with the harm principle is that we are in fact free to speak as we like. Hence, freedom of speech differs from some other forms of freedom of action. If the government wants to prevent citizens engaging in certain actions, riding motor bikes for example, it can limit their freedom to do so by making sure that such vehicles are no longer available. For example, current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published their thoughts. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree at the very moment she performed an action. The government would have to remove our vocal chords for us to be unfree in the same way as the motorcyclist is unfree.

A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it more difficult and potentially more costly to exercise our freedom. Such sanctions take two major forms. The first, and most serious, is legal punishment by the state, which usually consists of a financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction comes from social disapprobation. People will often refrain from making public statements because they fear the ridicule and moral outrage of others. For example, one could expect a fair amount of these things if one made racist comments during a public lecture at a university. Usually it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill provides a strong warning about the chilling effect of the latter form of social control.

We seem to have reached a paradoxical position. I started by claiming that there can be no such thing as a pure form of free speech: now I seem to be arguing that we are, in fact, free to say anything we like. The paradox is resolved by thinking of free speech in the following terms. I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits, and the next sections of the essay look at some possible solutions to this puzzle.

2. The Harm Principle and Free Speech

Given that Mill presented one of the first, and still perhaps the most famous liberal defense of free speech, I will focus on his claims in this essay and use them as a springboard for a more general discussion of free expression. In the footnote at the beginning of Chapter II of On Liberty , Mill makes a very bold statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. (1978, 15)

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (1978, 16)

Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological” (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons.

This is as strong an argument for freedom of speech as we are likely to find. But as I already noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (1978, 9)

There is a great deal of debate about what Mill had in mind when he referred to harm; for the purposes of this essay he will be taken to mean that an action has to directly and in the first instance invade the rights of a person (Mill himself uses the term rights, despite basing the arguments in the book on the principle of utility). The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. This is the position staked out by Mill in the first two chapters of On Liberty and it is a good starting point for a discussion of free speech because it is hard to imagine a more liberal position. Liberals find it very difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others.

If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers; he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,” (1978, 53), namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing legitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

There are other instances when the harm principle has been invoked but where it is more difficult to demonstrate that rights have been violated. Perhaps the most obvious example of this is the debate over pornography. As Feinberg notes in Offense to Others: the Moral Limits of the Criminal Law most attacks on pornography up to the 1970's were from social conservatives who found such material to be immoral and obscene; (Feinberg notes that there is no necessary link between pornography and obscenity; pornography is material that is intended to cause sexual arousal, whereas something is obscene when it causes repugnance, revulsion and shock. Pornography can be, but is not necessarily, obscene). In recent times the cause against pornography has been joined by some feminists who have maintained that pornography degrades, endangers, and harms the lives of women. This argument, to have force, must distinguish between pornography as a general class of material (aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abuse women. If it can be demonstrated that this latter material significantly increases the risk that men will commit acts of physical violence against women, the harm principle can legitimately be invoked.

When pornography involves young children, most people will accept that it should be prohibited because of the harm that is being done to persons under the age of consent. It has proved much more difficult to make the same claim for consenting adults. It is hard to show that the actual people who appear in the books, magazines, films, videos and on the internet are being physically harmed, and it is even more difficult to demonstrate that harm results for women as a whole. Very few people would deny that violence against women is abhorrent and an all too common feature of our society, but how much of this is caused by violent pornography? One would have to show that a person who would not otherwise rape or batter females was caused to do so through exposure to material depicting violence to women.

Andrea Dworkin (1981) has attempted to show that harm is caused to women by pornography, but it has proven very difficult to draw a conclusive causal relationship. If pornographers were exhorting their readers to commit violence and rape, the case for prohibition would be much stronger, but they tend not to do this, just as films that depict murder do not actively incite the audience to mimic what they see on the screen. Remember that Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not sufficient grounds for prohibition. Overall, it seems very difficult to mount a compelling case for banning pornography (except in the case of minors) based on the concept of harm as formulated by Mill.

Another difficult case is hate speech. Most European liberal democracies have limitations on hate speech, but it is debatable whether these can be justified by the harm principle as formulated by Mill. One would have to show that such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property.

The main argument against allowing the march, based on the harm principle, was that it would cause harm by inciting opponents of the march to riot. The problem with this claim is that it is the harm that could potentially be done to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate. To ban speech for this reason, i.e., for the good of the speaker, tends to undermine the basic right to free speech in the first place. If we turn to the local community who were on the wrong end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that Mill's argument does not allow for state intervention in this case. If we base our defense of speech on the harm principle we are going to have very few sanctions imposed on the spoken and written word. It is only when we can show direct harm to rights, which will almost always mean when an attack is made against a specific individual or a small group of persons, that it is legitimate to impose a sanction. One response is to suggest that the harm principle can be defined in a less stringent manner than Mill's formulation. This is a complicated issue that I cannot delve into here. Suffice it to say that if we can, then more options might become available for prohibiting hate speech and violent pornography.

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because, as already noted, most people think that free speech should be limited if it does cause illegitimate harm. George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech, he claims, cause nowhere near as much harm as political and religious speech. His conclusion is that we do not want to ban these forms of speech and the harm principle, therefore, casts its net too far. Kateb's solution is to abandon the principle in favor of almost unlimited speech.

This is a powerful argument, but there seem to be at least two problems with the analysis. The first is that the harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. I doubt that Mill would support using his arguments about harm to ban political and religious speech. The second problem for Kateb is that if we accept he is right that such speech does cause harm in the sense of violating rights, the correct response is surely to start limiting political and religious speech. If Kateb's argument is sound he has shown that harm is more extensive than we might have thought; he has not demonstrated that the harm principle is invalid.

3. The Offense Principle and Free Speech

The other response to the harm principle is that it does not reach far enough. One of the most impressive arguments for this position comes from Joel Feinberg, who suggests that the harm principle cannot shoulder all of the work necessary for a principle of free speech. In some instances, Feinberg suggests, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm. As Feinberg notes, however, this has not always been the case and he cites a number of instances in the U.S. where penalties for sodomy and consensual incest have ranged from twenty years imprisonment to the death penalty. These are victimless crimes and hence the punishment has to have a basis in the supposed offensiveness of the behavior rather than the harm that is caused.

Such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech, that would escape prosecution under the harm principle. Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples. Given the specific nature of this essay, I will not delve into the issue of offensive behavior in all its manifestations, and I will limit the discussion to offensive forms of speech. Feinberg suggests that a variety of factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

How does the offense principle help us deal with the issue of pornography? Given the above criteria, Feinberg argues that books should never be banned because the offensive material is easy to avoid. If one has freely decided to read the book for pleasure, the offense principle obviously does not apply, and if one does not want to read it, it is easily avoidable. And if one is unaware of the content and should become offended in the course of reading the text, the solution is simple-one simply closes the book. A similar argument would be applied to pornographic films. The French film Bais-Moi was in essence banned in Australia in 2002 because of its offensive material (it was denied a rating which meant that it could not be shown in cinemas). It would seem, however, that the offense principle outlined by Feinberg would not permit such prohibition because it is very easy to avoid being offended by the film. It should also be legal to advertise the film, but some limits could be placed on the content of the advertisement so that sexually explicit material is not placed on billboards in public places (because these are not easily avoidable). At first glance it might seem strange to have a more stringent speech code for advertisements than for the thing being advertised; the harm principle would not provide the grounds for such a distinction, but it is a logical conclusion of the offense principle.

What of pornography that is extremely offensive because of its violent or degrading content? In this case the offense is more profound: simply knowing that such films exist is enough to deeply offend many people. The difficulty here is that bare knowledge, i.e., being offended by merely knowing that something exists or is taking place, is not as serious as being offended by something that one does not like and that one cannot escape. If we allow that films should be banned because some people are offended, even when they do not have to view them, logical consistency demands that we allow the possibility of prohibiting many forms of expression. Many people find strong attacks on religion, or t.v. shows by religious fundamentalists deeply offensive. Hence, Feinberg argues that even though some forms of pornography are profoundly offensive to a lot of people, they should still be permitted.

Hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition. If we examine some of the other factors regarding offensive speech mentioned above, Feinberg suggests that the march through Skokie does not do very well: the social value of the speech seems to be marginal, the number of people offended will be large, and it is difficult to see how it is in the interests of the community. These reasons also hold for violent pornography.

A key difference, however, is in the intensity of the offense; it is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult the members of the community with Nazi symbols. Nor, according to Feinberg, was there any political content to the speech. The distinction between violent pornography and this specific example of hate speech is that a particular group of people were targeted and the message of hate was paraded in such a way that it could not be easily avoided.It is for these reasons that Feinberg suggests hate speech can be limited.

He also claims that when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. If pornographers engaged in the same behavior, parading through neighborhoods where they were likely to meet great resistance and cause profound offense, they too should be prevented from doing so. It is clear, therefore, that the crucial component of the offense principle is the avoidability of the offensive material. For the argument to be consistent, it must follow that many forms of hate speech should still be allowed if the offense is easily avoidable. Nazis can still meet in private places, or even in public ones that are easily bypassed. Advertisements for such meetings can be edited (because they are less easy to avoid) but should not be banned.

4. Democracy and Free Speech

Very few liberals take the Millian view that only speech causing direct harm should be prohibited; most support some form of the offense principle. Some are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior to others on the grounds of race or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as sexual objects, who are often violently mistreated. Rae Langton, for example, starts from the liberal premise of equal concern and respect and concludes that it is justifiable to remove certain speech protections for pornographers. She avoids basing her argument on harm: “If, for example, there were conclusive evidence linking pornography to violence, one could simply justify a prohibitive strategy on the basis of the harm principle. However, the prohibitive arguments advanced in this article do not require empirical premises as strong as this…they rely instead on the notion of equality” (1990, 313).

Working within the framework of arguments supplied by Ronald Dworkin, who is opposed to prohibitive measures, she tries to demonstrate that egalitarian liberals such as Dworkin, should, in fact, support the prohibition of pornography. She suggests that we have “reason to be concerned about pornography, not because it is morally suspect, but because we care about equality and the rights of women” (1990, 311). This is an approach also taken by Catherine McKinnon (1987). She distinguishes, much like Feinberg, between pornography and erotica. Erotica might be explicit and create sexual arousal, neither of which is grounds for complaint. Pornography would not come under attack if it did the same thing as erotica; the complaint is that it portrays women in a manner that undermines their equal status as citizens: “We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual” (1987, 176).

Langton agrees and concludes that “women as a group have rights against the consumers of pornography, and thereby have rights that are trumps against the policy of permitting pornography…the permissive policy is in conflict with the principle of equal concern and respect, and that women accordingly have rights against it” (1990, 346). Because she is not basing her argument on the harm principle, she does not have to show that women are harmed by pornography. For the argument to be persuasive, however, one has to accept that permitting pornography does mean that women are not treated with equal concern and respect.

To argue the case above, one has to dilute one's support for freedom of expression in favor of other principles, such as equal respect for all citizens. This is a sensible approach according to Stanley Fish. He suggests that the task we face is not to arrive at hard and fast principles that govern all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will tend to remind us that when we are discussing free speech, we are not dealing with speech in isolation; what we are doing is comparing free speech with some other good. For instance, we have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm.

I suggested early in this essay that to begin from a principle of unregulated speech is to start from a place that itself needs to be vigorously defended rather than simply assumed. Stanley Fish is of a similar temperament and suggests that we need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action” (1994, 111). Is speech promoting or undermining our basic values? “If you don't ask this question, or some version of it, but just say that speech is speech and that's it, you are mystifying—presenting as an arbitrary and untheorized fiat—a policy that will seem whimsical or worse to those whose interests it harms or dismisses” (1994, 123).

In other words, there have to be reasons behind the argument to allow speech; we cannot simply say that the First Amendment says it is so, therefore it must be so. The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech. A good policy “will not assume that the only relevant sphere of action is the head and larynx of the individual speaker” (Fish, 1994, 126). Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, “it depends. I am not saying that First Amendment principles are inherently bad (they are inherently nothing), only that they are not always the appropriate reference point for situations involving the production of speech” (1994, 113). But, all things considered, “I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope towards tyranny. This is a judgement for which I can offer reasons but no guarantees” (1994, 115).

Hence, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say, guided but not hidebound by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: “No such thing as free (nonideologically constrained) speech; no such thing as a public forum purged of ideological pressures of exclusion” (Fish, 1994, 116). Speech always takes place in an environment of convictions, assumptions, and perceptions i.e., within the confines of a structured world. The thing to do, according to Fish, is get out there and argue for one's position.

We should ask three questions according to Fish: “[g]iven that it is speech, what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?” (1994, 127). He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas. Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the center of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is such a great football team but it would be completely inappropriate (and open to censure) to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. A campus is not simply a “free speech forum but a workplace where people have contractual obligations, assigned duties, pedagogical and administrative responsibilities” (1994,129). Almost all places in which we interact are governed by underlying values and hence speech will have to fit in with these principles: “[r]egulation of free speech is a defining feature of everyday life” (Fish, 1994,129). Thinking of speech in this way removes a lot of the mystique. Whether we should ban hate speech is just another problem along the lines of whether we should allow university professors to talk about football in lectures.

Although Stanley Fish takes some of the mystique away from the value of speech, he still thinks of limitations largely in terms of other regarding consequences. There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of the action involved (whether it be speech or some other form of behavior) and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category. Most liberals are wary of such arguments because we are now entering the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Mill, for example, is an opponent of paternalism generally, but he does believe there are certain instances when intervention is warranted. He suggests that if a public official is certain that a bridge will collapse, he can prevent a person crossing. If, however, there is only a danger that it will collapse the person can be warned but not coerced. The decision here seems to depend on the likelihood of personal injury; the more certain injury becomes, the more legitimate the intervention. Prohibiting freedom of speech on these grounds is very questionable in all but extreme cases (it was not persuasive in the Skokie case) because it is very rare that speech would produce such a clear danger to the individual.

Hence we have exhausted the options that are open to the liberal regarding limitations on free speech and one cannot be classed as a liberal if one is willing to stray further into the arena of state intervention than already discussed. Liberals tend to be united in opposing paternalistic and moralistic justifications for limiting free expression. They have a strong presumption in favor of individual liberty because, it is argued, this is the only way that the autonomy of the individual can be respected. To prohibit speech for reasons other than those already mentioned means that one has to argue that it is permissible to limit speech because of its unsavory content, or as Feinberg puts it, one has to be willing to say that

[i]t can be morally legitimate for the state, by means of the criminal law, to prohibit certain types of action that cause neither harm nor offense to any one, on the grounds that such actions constitute or cause evils of other kinds. ( Harmless Wrongdoing , p. 3)

Acts can be “evil” if they are dangerous to a traditional way of life, because they are immoral, or because they hinder the perfectibility of the human race. Many arguments against pornography take the form that such material is wrong because of the moral harm it does to the consumer. Liberals oppose such views because they are not overly interested in trying to mold the moral character of citizens.

We began this examination of free speech with the harm principle; let us end with it and assess whether it helps us determine the proper limits of free expression. The principle suggests that we need to distinguish between legal sanction and social disapprobation as means of limiting speech. As already noted, the latter does not ban speech but it makes it more uncomfortable to utter unpopular statements. J.S. Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, Mill also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because it produces stunted, pinched, hidebound and withered individuals: “everyone lives as under the eye of a hostile and dreaded censorship…[i]t does not occur to them to have any inclination except what is customary” (1978, 58). He continues:

the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind…at present individuals are lost in the crowd…the only power deserving the name is that of masses…[i]t does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought. (1978, 63-4)

With these comments, and many of a similar ilk, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority.

It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation:

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. (1978, 97 [author's emphasis]

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful persons can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the persons, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill[special-character:#146s arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Hence we see that one of the great defenders of the harm principle seems to shy away from it at certain crucial points and it is unlikely that a defense of free speech can rest on the principle alone. It does, however, remain an elementary part of the liberal defense of individual freedom.

Liberals tend to defend freedom generally, and free speech in particular, for a variety of reasons beyond the harm principle; speech fosters authenticity, genius, creativity, individuality and human flourishing. Mill tells us specifically that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence. Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography? It is worth pondering the relationship between speech and truth. If we had a graph where one axis was truth and the other was free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured? It is certainly questionable whether arguments degenerate into prejudice if they are not constantly challenged. Devil's advocates are often tedious rather than useful interlocutors. None of this is meant to suggest that free speech is not vitally important; this is, in fact, precisely the reason we need to find good arguments in its favor. But sometimes supporters of free speech, like its detractors, have a tendency to make assertions without providing compelling evidence to back them up.

In a liberal society, we have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. The offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that all forms of pornography and most forms of hate speech will escape punishment. If this argument is acceptable, it seems only logical that we should extend it to other forms of behavior. Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither the harm or the offense principles as outlined by Mill support criminalizing bigamy or drug use, nor the enforcement of seat belts, crash helmets and the like.

Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state should decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes offense. As we have seen, even Mill seems to back away somewhat from the harm principle. Hence the freedom of expression supported by the harm principle as outlined in Chapter One of On Liberty and by Feinberg's offense principle is still a possibility rather than a reality. It is also up to the reader to decide if it is an appealing possibility.

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[As of January 2008, typing “free speech” on Google will net millions of entries. Hence it is best to simply jump in and see what one can find. It is worth noting that almost all of them are devoted to the promotion of speech in the face of censorship. This reflects a strong bias on the internet in favor of the “slippery slope” view of free speech. There are not many entries where an argument is made for placing limitations on free expression. Wikipedia has a quite a few entries dealing with censorship, free speech, pornography, and crime statistics. Here are a few other cites to get you going.]

• American Civil Liberties Union
• Free Speech Movement archives (related to Berkeley in the 1960's)
• Freedom Forum , (a forum dedicated to free speech and a free press)
• Free Expression , Center for Democracy and Technology, (a website related to the issue of free speech and the internet)
• Electronic Frontiers Australia (an Australian website on censorship and free speech)
• The Kellor Center for the Study of the First Amendment

democracy | equality | Mill, John Stuart | paternalism | pornography: and censorship

Table of Contents

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

• David Hudson

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

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

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

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

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

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

Self-governance and a check against governmental abuse

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

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

Liberty and self-fulfillment

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

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

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

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

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

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

Informational theory

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

Coronavirus and the failure of the 'Marketplace of Ideas'

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

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

Safety valve theory

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

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

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

Tolerance theory

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

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

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

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

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

• Free Speech

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Ep. 214: 'Private Censorship' with J.P. Messina The First Amendment forbids government censorship. Private institutions, on the other hand, are generally free to restrict speech. How should we think about private censorship and its role...

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The Editorial Board

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] .

Follow The New York Times Opinion section on Facebook , Twitter (@NYTopinion) and Instagram .

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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Freedom of speech should not be restricted lightly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Are Limits on Freedom of Speech Ever Justified?

Example of introduction to freedom of speech essay.

Most people in democratic states emphasize that freedom of speech is a necessity. For example, the United Nations Declaration of Human Rights, the U.S. Bill of Rights, and the European Convention on Human Rights usually stipulate that freedom of speech is a fundamental human right. These documents usually underline that Congress is not supposed to make any law that respects the establishment of religion, abridge the freedom of speech or the press and redress the rights of people to resemble peacefully. Every person has freedom of opinion and expression (Sadurski 24). In this perspective, every person has the right to make their own opinions to make hold their own opinions without any form of interference. People also have the freedom to express their opinions or ideas through any media regardless of limits imposed.

Example of Body Paragraphs to Freedom of Speech Essay

The United Nations General Assembly Resolution stipulates that every person has the freedom to express their opinion. In this perspective, everyone has the right to hold opinions, receive or impart information without any form of interference from a public authority. In this perspective, states can broadcast television or cinema enterprises without the interference of public authority. However, the exercise of these freedoms is supposed to encompass certain duties and responsibilities. This is explained by the fact that they are subjected to formalities restrictions and penalties which are prescribed by the law of a democratic society.

These duties and responsibilities that are exercised in the freedom of speech are supposed to ensure that the interests of national security, public safety, protection of others rights, maintain the authority of the judiciary, prevent confidential information from being disclosed, prevention of a crime, and for the protection of morals (Sadurski 12). When people are not given the right to exercise their freedoms in a democratic society, they often become chaotic. In this perspective, therefore, governments in democratic states ensure that people are allowed to practice their democratic rights in their country. Hence, the goal of this paper is to discuss whether the limits of freedom of speech are ever justified.

Discussion of the Freedom of Speech Limitations

The limitations imposed on the freedom of speech can be justified by the presence of certain people who are often offended when it is used to mock certain people. For example, in places of work, there are people who engage in certain activities in order to mock certain people who they regard as inferior. In this perspective, therefore, it is important to note that even though people are engaged in certain activities to express your freedom of speech, it is important to ensure that they do not offend other people by relaying the message (Wayne 5).

People would not be in a position to ask brave questions against the government or the church if there is no freedom of speech. If people have full respect for their government or the church, they would always keep their mouth shut. The first amendment in the freedom of speech is aimed at preventing people from being persecuted for their own ideas. Many people have misused their freedom of speech in the past, thereby leading themselves to be prosecuted for their own ideas. However, if an idea violates the rights of a person, then it should not be allowed. In this case, it is not necessary for people to be beaten up or be disrespected just because certain people think that they do not have value in the world or because of their skin color (Sadurski 5). However, people should not do things that offend other people.

Every person should hold himself responsible for any speech that he directs to harm another person. For example, a person may issue a speech that may cause a slander or cause certain people in a room to panic. In this perspective, an issue arises on whether one would need to limit when any person has the ability to sue another for the damages caused (Alexander 43). However, one needs to understand that the law only gives criminal remedy to something that is treated as civil.

There are various groups that become as offensive as they can to certain conservative groups. In this perspective, they normally harass, picket, threaten or even boycott. From this perspective, they can feed any strong response by ensuring that they increase the power of the government. In this perspective, they would shift the media to be on their side, thereby making the story to favor them. On the other hand, most conservatives are usually regarded as meek and they always try in vain to make sense of the childish behavior that the liberal groups engage in (Wayne 6). In this case, the liberal groups usually abuse the rights of the conservatives by stipulating that the exercise of rights by the conservative group in an abuse of the rights of the liberal groups.

Therefore, in this perspective, the solution would not be to limit the freedom of speech through the government. In this case, one needs to stand up to the bullies and claim for individual rights. For example, in high school, the best way to defeat a bully is not to cry or run to the teacher. The best mechanism to cope with this situation is by ensuring that the offender is punished and not care whether bullies would also be punished by the school. Though the government has abdicated their rights to protect the rights of citizens, it has also been noted to be busy inventing entitlements which infringe the citizens’ real rights (Alexander 44). It is, therefore, important for citizens to ensure that they do not give in to the pressures by the government and fight for their real rights.

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In an article where the Supreme Court ruled out that teachers and students do not shed their constitutional rights to freedom of speech at the schoolhouse gate, this state of affairs should be regarded as horrendous. This case can be attributed to the controversy that is observed in the books that teachers are allowed to give to their students. This also covers the extent to which the teachers are allowed to talk about books. In this perspective, most students are normally led to believe in concepts that are not fully correct. In this perspective, the teachers are normally not allowed to express their opinions on how they feel about such situations (Powers 56).

This mostly happens in elementary and high school levels of the system of education. In this case, the students do not realize that they are being given garbage information since they are not in a position to differentiate between what is right or wrong. In this perspective, therefore, one would argue that the limiting of free speech among teachers promotes false education to the students.

Therefore, it is clear that the Supreme Court tries to shield students from the real world. In this perspective, it is not right to treat students like uneducated people when they go to school to learn. It is important to ensure that the students are made to learn the truth. They need to understand that the world is not close to perfection. It is important to deliver to the students that the world today is characterized by issues such as fatalities and controversies. In this perspective, therefore, it is important for the government and Supreme Court to ensure that by limiting teachers the freedom of speech would not in any way to help the students (Powers 56). On the contrary, it will only harm the upcoming future generations. Therefore, it is evident that when people are limited in their freedom of speech, they become inefficient in terms of knowing what the real world entails.

In colleges, for example, the censorship of information is usually carried out by other students. Most of these forms of censorship do not take legal forms. Most forms of censorship are carried out with the aim of preventing the bad light of certain groups from reaching the bigger audience. Thefts of newspapers that publish articles that comprise offensive information by various segments of the student body have been known to take place at an alarming rate since the 1990s. For example, in April 2002, a thousand copies of Texas Christian University Newspapers were stolen (Nelson 23). This extreme event took place because of two controversial articles that were published in the newspaper. The articles that made the newspaper be stolen concerned information about fraternity hazing and the other reflected a situation where a player in the women’s basketball team was accused of stealing a teammates’ credit card.

It is also true that college newspaper staffs are not immune to self-censorship. Some of the advertisements that are regarded as being very controversial do not get published. For example, in spring 2001 a conservative columnist, David Horowitz, made an advertisement to 48 college newspapers across the U.S. The publication was entitled “Ten Reasons Why Reparations for Slavery are a Bad Idea.” In this case, only 14 college newspapers published the advertisement. However, several of the colleges that published the advertisement later apologized. In this perspective, it is evident that conservatives are not the only ones whose right to free speech is ignored (Nelson 25). There have been incidences when advertisements which stipulate that advertisement is not murder have also been ignored.

It is clear that issues on whether free speech can be justified are not only evident at the college level or high school level. From the examples, one can see that censorship is usually carried out for various reasons. Some of these reasons are often trivial, whereas others are personal or trivial. Political speeches normally get a lot of attention and they are, therefore, the key targets for censorship (Cram 45). The infringement of free speech in schools and outside the education environment remains a controversial issue. With regard to the issue of whether there should be limits to free speech, many authors still wonder whether free speech should be unrestricted completely.

Most forms of expression are normally harmless and, hence, protected by the right to freedom of expression. However, while seeking or receiving information from certain societies, it is important for one to understand that there are those societies that can tolerate various incitements such as murder or sale of pornography to children (Hare and Weinstein 5). However, it is important for one to understand that freedom of expression is not absolute and it can be limited whenever it is found to conflict with certain rights.

International law requires that the freedom of expression should be regarded as a rule. The limitations that should be imposed must be aimed at protecting the rights and reputations of other people, national security, public order, public health, and morals. Freedom of expression should not be limited in the case of a public official. In order for the freedom of speech to be limited, the law must be applied that is entrusted by the lawmakers. In this perspective, therefore, it is important for the regulation to meet various standards that can help clarify so that people can see the consequence of their actions (Hare and Weinstein 7). If the actions are worded in a vague manner and appear as unclear, they would not be treated as legitimate and, thus, the information should not be treated as controversial.

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It is essential to have a legitimate aim so that the freedom of expression can be limited. For example, the limitation can be carried out in the case if it is aimed at respecting rights, protecting national security or sustaining public health, order or morals. In case if these conditions are not met, then no limitation should be imposed. Hence, it is true that any limitation to the freedom of expression should be truly necessary. This means that regardless of whether a limitation is in accordance with the law, it would only pass the test if it is regarded as truly necessary so as to help protect a legitimate aim. As a result, it is true that if a limitation is not needed then there is no need to impose it (Cram 24). In most cases when the international courts stipulate that national laws should not be impermissible to limitations, such limitations are not deemed to be necessary.

Example of Conclusion to Freedom of Speech Essay

To sum up, it is clear that even though people should be allowed to practice their freedom of speech there are certain issues when limitation should be imposed. There are certain cases when people are allowed to communicate freely, this can lead to issues such as ruin of a person’s reputation, cause national insecurity, as well as destabilize public order, health, and morals. Therefore, in this perspective, it is important to ensure that before limitations are imposed that the issue in question is needed. Hence, limiting freedom of speech is justified in certain occasions.

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Freedom of Speech should not be Limited

Argue the case for unrestricted freedom of speech. Discuss the importance of free speech as a fundamental human right and its role in a democratic society. Address potential counterarguments about hate speech, misinformation, and public safety, exploring the balance between freedom of expression and social responsibility. You can also find more related free essay samples at PapersOwl about Freedom.

How it works

Literature has always been tricky. At times, people find certain books to be offensive or inappropriate. People will even go to great lengths to challenge or ban books just because of differing opinions. Limiting free speech has been a constant and continuous argument throughout history. One side argues that certain pieces of writing should be banned or censored due to words, content and themes that are either viewed as inappropriate, controversial or contain language that is no longer acceptable. Violence, profanity, racial terms, and sexual content are some examples.

The other side strongly believes that the First Amendment should be upheld regardless of the what the content is and how it is presented. Freedom of speech should not be limited.

The First Amendment is defined as the freedom of religion, speech, press, assembly, and protest. It is said that “freedom of the press is more important than freedom of speech because it can reach a bigger audience therefore making it more dangerous.” (The First Amendment, 2:10 – 2:40 ). When something is written down and out for everyone to see, it can have more power and be more far reaching than the spoken word. However, freedom of speech is not absolute. Some limitations of free speech are, “you are not allowed to harm others to get what want, you can’t deceive someone or threaten them, you can’t misrepresent the truth, and you can’t abuse someone.” (The Limits of Free Speech, 0:50 – 1:16) These limits are designed to protect people and set moral boundaries for the overall well-being of humanity. Topics such as, “science, religion, morality, and social issues as well as art and even personal gossip” (Ms.Griffin) can be talked about freely. It is important to note that typically, “parents challenge materials more often than any other group.” (Ms.Griffin) People tend to challenge books that make them feel uncomfortable. Parents can be reactive to sensitive topics, such as sexuality, cursing and violence. At times, a word or part of a book can make a whole group uncomfortable and that’s when things get complicated.

Some may claim that harsh and cruel subjects should not be covered in books. These subjects can range from racial slurs to sexual content. “Books for teenagers have become dark, graphic, and gruesome to an unprecedented degree.” (Young Adult Literature) While this statement can ring true, it shouldn’t be an excuse to get rid of the books all together. If a teen feels that he or she can handle the content presented in a book, they should be able to read it. As stated in the previous paragraph, parents are the ones who usually feel that particular books should be banned. They may be trying to protect their kids but at the same time they are arguing to remove classics such as Huckleberry Finn and The Outsiders. “Such books provide horrible role models for young people and encourage bad behavior.” (Young Adult Literature) Arguably, there can be awful people described in books but like it or not, teens make decisions on their own terms. A book is not going to influence their decision to curse or to have sex. In addition, books directed toward teens that include topics such as sex, drugs and alcohol are describing typical situations in teen life. Getting rid of books that include these subjects, in a way, would deny that teens go through serious challenges. A teenager’s life is in no way flawless or cookie cutter perfection. Therefore books shouldn’t try to cover up the imperfections.

Further insight about this argument is that books should not be limited to describing situations where everything is always joyful. Many of the best works of literature have very serious aspects to them. However, certain people feel that classics should be altered in a way to make them less offensive and cruel. This misguided act would be damaging to the original text. “Critics of editing classic books insist that changing an author’s original words changes the intent.” (Editing The Classics) Undoubtedly, altering one word or phrase could change the whole context of the dialogue.

Another good point is that a book should not be removed from a shelf just because of someone’s opinion.”Opponents contend that great works of art should not be changed simply because somebody finds them uncomfortable look at.” (Editing The Classics) Consequently, one person’s opinion shouldn’t affect the majority’s view. If a book truly makes someone uncomfortable, then they can choose not to read it. For example, if a parent feels that a book is too harsh for their child to read, they can decide to not buy the book rather than try to get it banned from everyone.

Critics of limiting free speech feel that humans have the intelligence to figure out the real intent of a written work. “Critics argue that readers should be smart enough to discern the true meaning of a text by themselves without an editor filtering it for them.” We, as people, should be able to see deeper meanings and read between the lines. For instance, it’s typical for evil and crude characters to curse. The cursing can help give voice to a significant part of their personality. Curse words are also commonly used to portray strong emotions.

For this project I read the book Angus Thongs and Full Frontal Snogging. I enjoyed the book and would have never thought it would have been a book that was challenged. I think of the book as a cheesy teen story. Surprisingly, the book was considered scandalous by a parent and consequences followed. “Retained with limited access at the Maplewood Middle School Library in Menasha, Wis. (2008). The coming-of-age novel, which has sexual content, was found offensive by a parent. In addition to retaining the book, board members voted unanimously to adopt procedures intended to secure and record parental consent before limited access books are released to students.” (Newsletter on Intellectual Freedom) Yet the sexual content within the book is quite mild. Georgia, the main character, makes out with boys like many teens do. She argues with her parents and curses sometimes. Georgia and her friends discuss lesbianism and she even considers it to solve her boy problems. All of these things can occur during a teen’s life. There is no shame in any of it. Georgia’s actions are similar to many of my peers.

There are two sides to every argument. The topic of freedom of speech inspires disagreements and debates. Those who support censorship cite books that include themes such as violence, sexual content, cursing, racial slurs, age inappropriateness and controversial ideas. Carelessly, certain people believe that because one person/group becomes uncomfortable with a book, it should be booted off shelves. In contrast, others believe that freedom of speech is everyone’s right, regardless of content. Parents are are usually responsible for the banning of a book. While they believe they are protecting their kids, they are essentially censoring them from the real world. A book can evoke empathy and connections, even allowing a teen to feel like they are sharing the same experience as a character in a book. As a result, they feel like they have someone to relate to. During a time when many young people can feel misunderstood, books can help the feel like they are not alone. Editors shouldn’t have to alter books just to please an opinion. It would change the intent of classics completely. If someone is sincerely bothered by a book they should step away and choose not to read it then go on their way. Their opinion should not impact everyone else. All in all, free speech should not be limited. There is no point is censoring books that so importantly reveal society truthfully.                       

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17 Freedom of Speech Pros and Cons

When a person or a corporation has the right of the freedom of speech, then they are able to express any opinion without restraint or censorship. This approach to society is a democratic institution which dates back to the ancient Greek culture.

In the United States, the First Amendment guarantees the right to free speech for all people. Through this fundamental right, Americans have the freedom to protest, practice the religion they want, and express opinions without worrying about the government imprisoning them for criticism. It was adopted on December 15, 1971, as part of the Bill of Rights.

As with all modern democracies, even the United States places limits on this freedom. There are specific limits placed on this principle that dictate what people can or cannot say legally. The First Amendment does not specifically say what is or is not protected, but the Supreme Court has ruled that there are some forms which are not allowed.

Here are the freedom of speech pros and cons to consider with this element as part of a democratic society.

List of the Pros of Freedom of Speech

1. Freedom of speech protects each of us from the influence of special interests. When people have power, then they do whatever they can to retain it for as long as possible. That may include a change in the government’s constitution, a shift in a company’s Board of Directors, or the suppression of a minority group that threatens the way of life for the people involved. Having the freedom of speech reduces this power because it allows individuals to express criticism of those who are in power. There is no fear of losing personal freedom with this right because your opinion contributes to the overall conversation.

2. Freedom of speech eliminates compelled actions. When you have the freedom of speech, then the government cannot compel your actions in such a way that you are required to speak a specific message. You stay in control of what you say and how those words are expressed to the rest of society. Even if the government attempts to alter your words to their advantage, you will always have the opportunity to address the situation and correct the “mistakes” that others create in your work.

3. Freedom of speech promotes the free exchange of ideas. When a society operates in an area where free speech is given to all, then there is a more significant exchange of ideas that occur. It becomes almost impossible for those who are in power to suppress truths that they may not want to let out in the open. This process allows for progress to occur because people can learn from the experiences and perspectives of one another without worrying about the dogma of a “Big Brother” element in society, either corporate or government-based.

4. Freedom of speech can expose immoral or unlawful activities. When Edward Snowden decided to leak numerous state secrets to the press, he created an interesting question about the freedom of speech that we are still attempting to resolve in our society. Was such an action inflicting damage against the legitimate actions of the government? Or was the information he offered a way to bring light to actions that the government shouldn’t have been performing in the first place? It is tricky to find the line which exists when you must protect information or protect others. Having this right in society allows us to at least have that conversation.

5. Freedom of speech prevents the requirement to behave specific ways. Some people today might say that any speech which someone finds offensive should be banned. Imagine then that someone became offended by the mention of same-gender marriage – or the opposite, that they were offended by the mention of opposite-gender marriage. Freedom of speech allows people to make up their minds about what to share with others. Some people might be brazen with their approach, but that also means they might not have as many friends because of their attitude.

6. Freedom of speech advances knowledge for a society. When you have a chance to ask questions or share perspectives, then it creates more learning opportunities in society. This right makes it easier for all individuals to make a new discovery, suggest ideas, or exchange information freely without worrying about potential political consequences. Even if some of the ideas do not work after you get to try them, the process of testing contributes to the advancement of society as well. Thomas Edison famously made 1,000 unsuccessful attempts at the invention of the light bulb – each idea was a new step toward success.

7. Freedom of speech allows for peaceful changes in society. Some people use their freedom of speech as a way to incite hatred or violence. Others use it as a way to create the potential for peaceful change. Providing facts to individuals while sharing your opinion can persuade them to consider your perspective, even if they do not agree with it at the time. When this is your top priority with this right, then you are less likely as an individual to use violence as a way to create change. Although this process requires patience from all of us to be successful, it will usually get us to where we want to be.

8. Freedom of speech gives us an opportunity to challenge hate. Peter Tatchell is a human-rights activist who suggests that the best way to move forward as a society is to challenge the people who have differing views. He told Index in 2016 this: “Free speech does not mean giving bigots a free pass. It includes the right and moral imperative to challenge, oppose, and protest bigoted views. Bad ideas are most effectively defeated by good ideas, backed by ethics and reason, rather than bans and censorship.

9. Freedom of speech creates resiliency. Although exposing people to hate speech is hurtful and creates fear in some individuals, it also creates a resiliency in the debate. Instead of making your voice louder when confronting these ideas, you are improving your argument. When this action occurs, the action of observation and counter-observation make it possible to create an outcome where progress toward the greater good occurs. When we lack tolerance for differing, uncomfortable opinions, then it weakens the rights that so many people take for granted when there is something that they want to say.

List of the Cons of Freedom of Speech

1. Freedom of speech does not mean the freedom to have “all” speech. The concept behind the freedom of speech is that you should be able to express anything in a way that does not create legal consequences for you. Even if your opinion is unsavory, rude, or unpopular, this right gives you the option to express it. In the United States, there are four forms of speech which are not protected under the First Amendment.

• You cannot make an authentic threat against another individual. • It is illegal to defame others, including libel and slander. • You cannot plagiarize any copyrighted material. • It is illegal to share some obscene material, such as child pornography.

If you say something in the United States which insights illegal actions or solicit others to commit a crime, then your speech is not protected by the First Amendment either.

2. Freedom of speech can spread false information. Thanks to the rise of the Internet, the freedom of speech makes it easier for individuals to spread false information and outright lies, but then still pretend that this data is true. Research does not prove that vaccinations increase the risk of autism in children, but you will find “information” online that says this is true. Even though it is protected speech when this right is present, it could also lead to people getting or transmitting a preventable disease. In 2019, over 60 people in Washington and Oregon contracted the measles, with almost all of the cases being unvaccinated children.

3. Freedom of speech can incite violence against other people. People must be held responsible for the personal choices that they make. When someone commits an act of violence against another because they were incited by hate speech to do so, then they made the choice to break the law. The person who created the outcome through the encouragement of their language holds some responsibility here as well. If online radicalization causes people to join ISIS, then shouldn’t political radicalization that causes individuals to attack journalists be treated in the same way?

4. Freedom of speech creates a paradox. When we look at the modern idea that creates the foundation for freedom of speech, it really isn’t free. The government is still dictating some of the things that we can or cannot say. This freedom, and this writer, cannot exist if people are not allowed to make assertions that are distasteful to the majority, even if the statements are hurtful to other people.

5. Freedom of speech can create a mob mentality. In 2012, Oatmeal and FunnyJunk had a dust-up over the use of images that author Matthew Inman did not authorize for distribution. Charles Carreon made a public splash as the attorney for FunnyJunk, which created a back-and-forth which eventually led the Internet to turn against him. In return for those actions, Carreon labeled everyone he thought of as an “instigator” as a “rapeutationist.” When one person offers an opinion that others find to be believable, it creates a mob mentality on both sides of the equation. When this happens, it can destroy a person’s livelihood quickly.

6. Freedom of speech can cause people to endure verbal abuse. Voltaire’s biographer summed up the views of the philosopher like this: “I don’t agree with what you say, but I will defend to the death your right to say it.” When freedom of speech is treated this way, then it creates a situation where people must endure sexist or racist verbal abuse. Is it really beneficial for society to allow individuals to use derogatory terms for the purpose of causing discomfort?

We already know that there can be poor health outcomes associated with the fear of violence and crime. Dr. Erin Grinshteyn of UCSF conduced an online survey platform that asked students to rate their fear of experiencing 11 different crimes that included physical assault, hate speech, vandalism, and microaggressions among others. Her findings showed that students in racial minority groups feared violence more than Caucasians. Ongoing fear is a risk factor for mental health declines as well.

7. Freedom of speech will eventually polarize society. When people are allowed to express their opinions freely, then it creates three primary outcomes. Some people will agree with the statement, others will disagree, and a middle group won’t care one way or the other. People tend to hang out in circles where others think and feel in similar ways, which means they will gather around like-minded individuals to spend most of their time.

Pew Research found as early as 2014 that 92% of Republicans are to the political right of the median Democrat, while 94% of Democrats were to the left of the median Republican. 36% of GOP supporters even felt that members of the opposite party were a threat to the wellbeing of the country. When there are ideological silos created from free speech, it eventually polarizes society into groups that struggle to get along with each other.

28% of people say that it is important to them to live in a place where most others share their political views. For people who label themselves as “consistently conservative,” that figure rises to 50%, and 63% of that same group says that most of their close friends share their political views.

8. Freedom of speech reduces the desire to compromise. Pew Research also discovered that when people are consistently liberal or conservative with their freedom of speech, their idea of what compromise entails begins to shift. Instead of believing that both sides must have a give-and-take to create an outcome, the definition becomes one in which their side gets what they want while the other side gets as little as possible. This perspective makes it a challenge for society to function because those on each extreme are consistently battling the other extreme because each views themselves as being the superior contributor to society.

A Final Thought on the Pros and Cons of Freedom of Speech

The pros and cons of freedom of speech suggest that there should be some limits in place for the general good of society. Allowing people to say or do whatever they want at any time increases the risk for harm. Do we really want to live in a world where the creation and distribution of child pornography is a protected right?

Once we start deciding “good” and “bad” speech, it opens the door for abuses to occur. That is why the Supreme Court in the United States has worked hard for over 200 years to create rigid definitions of what is helpful and what is harmful. The goal is to allow people to express contrary opinions without the threat of legal reprisal. This structure promotes an exchange of ideas, which then encourages the learning processes for everyone.

54 years after Kent State: What limits are there to freedoms of speech and protest?

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .  

The 54th anniversary of the tragedy at Kent State University where Ohio national guardsmen fired into a crowd of anti-war protestors killing four students was Saturday.

As we again confront a wave of demonstrations at campuses across the country regarding the war in Gaza, it is important to be mindful of both the protections and limitations of the U.S. Constitution when it comes to protests.

Demonstrators are acting consistently with the First Amendment, and within an American tradition of civil disobedience, when they engage in peaceful protest. Though the First Amendment provides that government cannot limit freedom of “speech,” courts have long recognized that speech includes conduct — so long as it communicates a message. 

'Utter turmoil': Former National Guardsman reflects on Kent State tragedy of May 4, 1970

How far can protests go legally?

Examples of expressive conduct may include marches, sit-ins, and even flag burning. 

American thinkers from Thomas Jefferson to Henry David Thoreau to Martin Luther King have all endorsed acts of peaceful rebellion to bring government leaders to the negotiating table, which is the goal of many campus protestors.

However, when protestors move farther away from words and engage in destructive actions, they forfeit certain protections of the First Amendment.  That is because conduct itself can typically be regulated and punished without offending the Constitution. 

Protestors who destroy university property or invade classrooms and administrative buildings can be disciplined for this conduct, despite claims that they were acting in order to draw attention to their message.

The Supreme Court has held that anti-war demonstrators who burned their draft cards could be punished for destroying important Selective Service documents, so long as the government was not using the law to suppress the protestors’ message.

Does free speech come with restrictions?

The First Amendment also does not prevent the government from enforcing reasonable time, place, and manner restrictions on speech, as long as the rules are applied even-handedly. Thus, a government actor such as Ohio State University could impose reasonable limits on the hours of all protests, or the decibel levels of sound amplification systems. 

What about encampments?

OSU’s prohibition against overnight encampments would likely be viewed as a reasonable restriction on the “manner” of speech, assuming it has been enforced consistently in the past. 

The Supreme Court upheld a U.S. Park Service regulation that prohibited sleeping in Lafayette Park overnight as a reasonable “manner of speech” regulation, even applied to protestors attempting to call attention to the plight of the homeless.

Finally, the Constitution does not protect speech that goes beyond forceful advocacy, and in a few narrow circumstances words themselves can be punished if they are sufficiently threatening. For instance, if campus protestors urged imminent violence against university personnel or students, those words could likely be a grounds for punishment notwithstanding the protections of the First Amendment. 

Ohio State protest wasn't peaceful. Activist, supporters should stop clutching their pearls

Supreme Court precedent makes clear that speakers who advocate imminent unlawful conduct can be punished if their words are uttered in circumstances where serious lawless conduct is likely to occur.

When does the response go too far?

Of course, even when the government is acting within its authority to regulate protests, it cannot use excessive force.  To most observers, the guardsmen at Kent State shooting into a crowd of unarmed protestors was a tragic example of the improper use of force. 

The military-style deployment of highly armed police at campus protests likewise could invite the escalation of violence. Institutions of higher learning, which seek to impart values of tolerance, civil discourse, and respect for others must explore every possible means of deescalating tense situations before resorting to force.

Ted Carter, you turned campus into military zone. Your goons crushed protester's rights.

Northwestern University and Brown University recently succeeded in doing just that, avoiding violence by negotiating a greements with their protesting students. 

In the end, the First Amendment is a powerful tool that promotes democracy by limiting the power of government to squelch dissenting views. But it is up to us as citizens to exercise these freedoms in a responsible manner, consistent with the enjoyment of the blessings of liberty.

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .

Free Speech Belongs to All of Us

Personal perspective: restrict freedom of expression, and democracy suffers..

Updated May 19, 2024 | Reviewed by Ray Parker

• Several years ago, free speech was a hot topic. Many touted it as a tool of the far right.
• Now, with many protests related to the Middle East occurring, free speech is touted by political progressives.
• Protecting free speech rights includes expressions we agree with and those we disagree with.
• When we pick and choose which ideas should be supported by free speech rights, democracy itself takes a hit.

Several years ago, our campus dis-invited a conservative speaker who was set to speak on issues related to the then-upcoming 2016 presidential election. While I identify politically very differently from said speaker (proud member of the Working Families Party of New York right here, if you're wondering), I truly believe in the importance of freedom of speech and its several sibling concepts (e.g., academic freedom and open inquiry). As an academic who is interested in having ideas from a broad array of viewpoints be expressed and explored as part of knowledge creation, I care deeply about ensuring people's right to express themselves. In 2016, I agreed to head a task force on free speech for the campus to help our community deal with the dis-invite, which many folks found concerning.

At the time, many people were unhappy that said conservative speaker was re-invited. And I think that the free speech task force that I headed may not have been the most popular entity on campus at the time. But regardless of how ardently I personally disagreed with pretty much everything that this particular speaker said (who did end up speaking on campus eventually), to this day, I stand by the basic principle of freedom of speech as a basic right in a democracy. Allowing him to speak at a public university within standard parameters that surround free speech, such as those pertaining to safety, defamation, and genuine hate speech, was, as I see it, simply the right thing to do. And if people disagreed with his points, then this forum would allow them to raise their concerns directly with him in a public manner. And that is exactly what happened.

Back then (about eight years ago now), supporting free speech was often conflated in people's minds with some kind of far-right agenda—an agenda that is often antithetical to ideological norms on many campuses today (see Burmila, 2021). I heard people argue that free speech needed to have limits, that it is an inherently unfair concept as some people in society have more opportunities to express themselves than do others, and that free speech was something of a tool of the far-right to maintain some sort of status quo. While I am actually sympathetic to some of these concerns, at the end of the day, a democracy without the right to free speech is not really a democracy at all in my book.

A lot has changed in eight years. Without getting into too much of the details, the current war between Israel and Hamas has, throughout the world, it seems, given the topic of free speech front-and-center stage once again.

However, it is interesting to see that the politics of free speech seem to have changed—partly as a matter of convenience. On so many campuses, several students and other activists this past semester chose to exercise their free speech rights to make statements against much of the brutality and horror that has been launched as part of that war. Students, professors, and all kinds of activists have been taking to activism (e.g., assembling to express their opinions, carrying picket signs that express their views, etc.). As an advocate of free speech (see a recent paper that I (along with several others) coauthored related to this issue, Clark et al., 2023 ), to the extent that they are carried out peacefully and safely, I support these individuals in their efforts—regardless of my stance on the issues that they are concerned about. In other words, to my mind, free speech protections and rights must be distributed across the board (again, keeping in mind standard limitations pertaining to such issues as inciting violence, defamation, libel, etc.).

The Free Speech Irony of 2024

It is more than a little interesting to me that the same people who argued against free speech when it came to dis-inviting conservative speakers seem to be adamantly standing by the tenets of free speech and First Amendment rights when it comes to supporting expressions about the Hamas/Israel war on campus. By and large, these campus protests (conspicuously documented at such campuses as UCLA and Columbia—along with many others) have taken a pro-Palistinean viewpoint. And given that more than 30,000 Palestinians have lost their lives in this conflict (with a large proportion of the deceased having been children), it is not hard to understand the outrage and concerns that are being expressed (although, of course, this is a famously complex issue with deep historical and political roots—all of which is beyond the purview of this piece). In any case, a true advocate of freedom of speech should be blind to any particular viewpoint that is being expressed. That is the whole idea of free speech in the first place.

Many academics who decried free speech several years ago when conservative speakers were being dis-invited from campuses left and right are now citing the importance of free speech when it comes to allowing for peaceful protests and demonstrations that are largely consistent with their viewpoints.

When It Comes to Free Speech, We Cannot Pick and Choose

When people support free speech on a convenience basis, free speech rights become lost. The First Amendment of the Constitution does not specify that freedom of speech applies to some viewpoints but not to others. We may disagree ardently with someone's viewpoint. But disallowing that viewpoint to be expressed—particularly in public, government-owned spaces (such as campuses of state universities)—has the capacity to reduce freedom of expression for all of us down the line.

Then They Came for Me

This renowned quote, "... then they came for me ..." is often attributed to Martin Niemöller in reference to the atrocities of the Holocaust. This point, which speaks for itself in these five simple yet chilling words, bears importance on the issue of reducing free speech rights. The second that people start to pick and choose what ideas are allowed to be expressed freely and what ideas are not, we all (perhaps without realizing it) start down a slippery slope. If a strong and vocal group successfully shuts down free expression regarding Issue X, that could come back and bite those same individuals at a later point when they are trying to express their viewpoints on Issue Y. The second that people in a democracy start to pick and choose what viewpoints are allowed to be expressed freely and what viewpoints are not, down the line, free speech rights end up being diluted for everyone.

When it comes to efforts to reduce the free speech of others, people shouldn't be surprised that, at some point, similar efforts may well be directed at them. In other words, if you actively take steps to reduce the free speech of others, and free speech rights become diluted in general, the "anti free speech police" may well come for you one day.

Bottom Line

I feel fortunate to live in a democracy. It is not perfect. Not by any means. But I find myself as someone with a lot to say on lots of topics and I am truly grateful for free speech rights (and its sibling that we call academic freedom ). Being disallowed to express certain perspectives to study certain topics or to present certain research findings is nothing short of censorship.

When it comes to freedom of expression, whether we like it or not, we need to realize that this right applies not only to our own viewpoints or ideas but also to the viewpoints and ideas of those with whom we may disagree quite ardently. The second that our communities start to limit freedom of expression for selected viewpoints, the rights of freedom of expression for everyone become diluted. And our democracy actually becomes less of a democracy. And I would guess that most people don't want that.

———————————————-

Note: This piece was partly inspired by conversations with SUNY New Paltz political scientist, Dr. Dan Lipson.

Burmila E. Liberal Bias in the College Classroom: A Review of the Evidence (or Lack Thereof). PS: Political Science & Politics . 2021;54(3):598-602. doi:10.1017/S1049096521000354

Clark CJ, Jussim L, Frey K, Stevens ST, Al-Gharbi M, Aquino K, Bailey JM, Barbaro N, Baumeister RF, Bleske-Rechek A, Buss D, Ceci S, Del Giudice M, Ditto PH, Forgas JP, Geary DC, Geher G, Haider S, Honeycutt N, Joshi H, Krylov AI, Loftus E, Loury G, Lu L, Macy M, Martin CC, McWhorter J, Miller G, Paresky P, Pinker S, Reilly W, Salmon C, Stewart-Williams S, Tetlock PE, Williams WM, Wilson AE, Winegard BM, Yancey G, von Hippel W. Prosocial motives underlie scientific censorship by scientists: A perspective and research agenda. Proc Natl Acad Sci U S A. 2023 Nov 28;120(48):e2301642120. doi: 10.1073/pnas.2301642120. Epub 2023 Nov 20. PMID: 37983511.

Glenn Geher, Ph.D. , is professor of psychology at the State University of New York at New Paltz. He is founding director of the campus’ Evolutionary Studies (EvoS) program.

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Legal experts say a TikTok ban without specific evidence violates the First Amendment

Bobby Allyn

TikTok sued the Biden administration in response to a new law that bans the video app in the U.S. unless it is sold in the next 12 months. Michael Dwyer/AP hide caption

TikTok sued the Biden administration in response to a new law that bans the video app in the U.S. unless it is sold in the next 12 months.

Forcing TikTok to shut down its American operations over unspecified national security concerns would represent a violation of the First Amendment, according to six legal scholars surveyed by NPR.

TikTok last week filed a legal challenge against the Biden administration over a law that would ban the video app unless it fully divests from its China-based parent company, ByteDance, within 12 months.

Lawmakers and the White House have justified the crackdown on TikTok by claiming the app's link to Beijing makes it a national security threat. But supporters of a ban have not offered direct evidence of the Chinese government ever attempting to obtain data from the company, nor any proof that authorities there have ever influenced content on the platform used by 170 million Americans.

NPR reached out to a host of legal scholars who specialize in constitutional law, and the half-dozen who responded all said the U.S. government forcing the closure of TikTok on vague national security grounds would most likely infringe on TikTokkers First Amendment rights.

Evelyn Douek, a professor at Stanford Law School who focuses on online speech, said First Amendment legal precedents make clear that the government cannot shut down speech based on a hypothetical or potential threat to national security.

"The First Amendment places the burden on the government to demonstrate that the harms are real and that their response will actually mitigate those harms," Douek said. "To date, the government has not met this bar in the public domain, at least with respect to TikTok."

A Justice Department spokesperson said the agency looks forward to defending the law in court.

"This legislation addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations," the Justice spokesperson said.

TikTok's 'Project Texas' could be a major issue

Legal experts said that in addition to proving that TikTok is a security risk, U.S. officials will have to prove in court that its ban was the least restrictive way of dealing with the threat.

Most experts agree that a ban on TikTok will be examined under what is known as "strict scrutiny," meaning speech can only be curtailed if there is a compelling government reason and the solution is as narrow as possible.

Banning an entire social media platform, many have pointed out, looks like the opposite of a narrow solution.

"I find this especially implausible in light of TikTok's own good faith effort — Project Texas — to address the government's stated fears," said Ryan Calo, a professor in the University of Washington's School of Law.

Calo is referring to a plan TikTok says it has spent $2 billion on that would, with the help of Austin-based tech company Oracle, create a firewall between U.S. user data and the app's Beijing-based parent company.

TikTok officials go on a public charm offensive amid a stalemate in Biden White House

TikTok officials presented Project Texas to national security officials in Washington but the plan failed to assuage critics, as it did not include a complete severing of TikTok from ByteDance.

While TikTok did make sweeping promises that Project Texas would sequester Americans' data from the company's Chinese headquarters, reports have indicated that data still flows between TikTok's U.S. personnel and those in China. On top of that, ByteDance still controls TikTok's "secret-sauce" algorithm, and ByteDance staff in China routinely work with the software updates that determine what millions see on the app every day.

For five years TikTok has been in talks with the Committee on Foreign Investment in the U.S., a panel led by the Treasury Department that reviews foreign investment for national security concerns. In its lawsuit, lawyers for TikTok say its proposed plan included giving the U.S. a "shut-down option" it could use if TikTok did not meet its data security standards.

The government will have to show how exactly Project Texas was an inadequate solution, said the University of Washington's Calo.

Douglas Laycock, a constitutional law expert at the University of Virginia, said the government will likely try to make the case that this is a "content neutral" regulation of a business owned by a foreign adversary that poses a national security threat to the U.S., not a case about censoring speech.

While the government will try to make the legal case about security issues rather than free speech, it will be difficult to avoid the constitutional implications, experts said.

"The First Amendment protects our ability to speak, to associate freely, and to receive information, both from others here in the United States and from people overseas," said Patrick Toomey with the ACLU's National Security Project. "TikTok is host to an enormous global community that the app's creators and users in the United States could not readily reach and engage with elsewhere online."

Is divesting from ByteDance actually workable?

In its suit, TikTok said divesting from ByteDance is "not commercially, not technologically, not legally" possible.

One thing that would bolster the government case, Laycock said, is "a showing that the sale of TikTok, with its algorithm, is entirely workable," he said, "and that any obstacles to a sale are just ByteDance deliberately refusing to comply and sabotaging the law."

It's not just the company's resistance, though. Regulations in China would complicate, or even completely obstruct, a TikTok sale.

Any purchase of TikTok's U.S. offices would require the approval of the Chinese government, which opposes a forced sale. ByteDance has said it is not interested in potential TikTok bidders.

And then there are questions about what would even be purchased, since export-control laws in China would prevent TikTok's algorithm from being sold, meaning someone would be buying one of the world's most popular apps without the technology that propelled its popularity.

Classified briefing looms large

When former President Donald Trump tried to shut down TikTok through an executive order, federal judges blocked it over, in part, a lack of evidence that the app posed a security risk to to the nation. In Montana, a federal judge prevented a statewide ban from taking effect after declaring that the effort included a "pervasive undertone of anti-Chinese sentiment."

Before Congress added the ban to a foreign aid bill, lawmakers received a classified briefing about TikTok. Exactly what lawmakers heard has not been revealed publicly, but it was enough to coalesce overwhelming bipartisan support for forcing TikTok to divest from ByteDance or face a nationwide shutdown.

"My reaction to this briefing is that TikTok is a gun aimed at Americans' heads," Sen. Richard Blumenthal, D-Conn., told reporters after the session, adding, "The Chinese Communists are weaponizing information that they are constantly, surreptitiously collecting from 170 million Americans and potentially aiming that information, using it through algorithms, at the core of American democracy."

Laws in China would compel ByteDance to turn over any requests for Americans' data, but TikTok said it has never been asked for any information from the Chinese Community Party. While ByteDance staff have had access to U.S. user data, there is no public evidence of Chinese government officials attempting to obtain data on U.S. citizens.

Legal experts agree the case could turn on what proof the Department of Justice brings to court, since the public campaign against TikTok has not cited any specific instances of the Chinese government trying to use the app as a cyberweapon.

When asked what is the most important unknown in the case, Jameel Jaffer, who leads the Knight First Amendment Institute at Columbia University, said: "The government's purported secret evidence."

Other experts agreed.

"[It will depend on] whether the government can present some sort of exceptional evidence to justify this exceptional measure adopted through an exceptional procedure," Douek of Stanford said. "First Amendment law should not countenance shutting down an entire vibrant speech platform for anything less."

• free speech
• First Amendment
• social media