critical analysis of freedom of speech and expression

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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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• Gehan Gunatilleke   ORCID: orcid.org/0000-0002-8670-8602 1 , 2  

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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 Expression by Mark J. Richards LAST REVIEWED: 12 May 2017 LAST MODIFIED: 27 November 2023 DOI: 10.1093/obo/9780199796953-0105

Freedom of expression is a fundamental international human right. It is intrinsically valuable and necessary for the healthy functioning of democracy and civil society. Freedom of expression is necessary for the achievement of other human rights such as fair administration of justice, education, adequate standard of living, equality, human dignity, and the rights of women, peoples, and minorities. Although it is generally a negative liberty, freedom of expression places positive obligations on the state to provide access to information, Internet access, and to promote a child’s right to participate in education, work, and family life. Freedom of expression broadly understood encompasses a package of rights that are intimately intertwined, including freedom of opinion, speech, press, information, association, assembly, thought, conscience, belief, and religion. Although the rights can be conceptually organized into the four categories of expression, association, assembly, and thought, each with distinct meaning, actual cases commonly involve more than one of the rights. For example, a ban on wearing headscarves in a public educational setting raises issues of freedom of expression and religion. Freedom of expression is recognized by the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights (ACHPR), the American Convention on Human Rights (ACHR), the Arab Charter on Human Rights (Arab Charter), and the European Convention on Human Rights (ECHR). Although freedom of expression is fundamental, it is not absolute. Article 19 of the ICCPR allows for restrictions on freedom of expression that are necessary to protect the rights or reputations of others, national security, public order, public health, or public morals. Any such restriction must be provided for by law and be proportionate. The literature on freedom of expression as an international human right tends to focus on cases and jurisprudence, with some attention paid to the roles of international human rights institutions. Regional and international civil society groups actively highlight current threats to freedom of expression, often in cases of threats to individuals, journalists, or small groups, but also more systematically via annual, country, regional, and thematic reports. Many of the most prevalent issues of the past decade revolve around the Internet such as hate speech, regulation of social media, Internet access, disinformation, and surveillance. Of course, the Internet has transformed communications, but it has also enabled unprecedented state and international surveillance that threatens privacy and freedom of expression alike. Other contemporary free expression issues arising under international law include protection of journalists and human rights defenders, sexual orientation and gender identity (SOGI), genocide and atrocity crimes, the speech rights of the child, and religion.

Barendt 2007 is a masterful treatment of the comparative law of freedom of expression. The second edition provides extensive coverage of the European Commission and (later) European Court of Human Rights (ECtHR) in addition to cases from Australia, Canada, France, Germany, Italy, New Zealand, South Africa, the United States, and the United Kingdom. Barendt evaluates why freedom of speech should be protected, reviews its scope, and compares how it is treated in liberal democracies. He provides detailed, comparative analyses of a wide range of freedom of speech issues. Zeno-Zencovich 2008 covers European freedom of expression, takes a policy focus, and is especially attentive to the European Convention on Human Rights (ECHR). Textbooks in international human rights law typically have a chapter devoted to freedom of expression. McGoldrick 2022 provides a comprehensive overview of freedom of expression, including freedom of thought, religion, association, and assembly. Janis, et al. 2008 devotes one chapter to freedom of expression and association and another to freedom of thought, conscience, and religion. They integrate explication and analysis with excerpts of the case law of the ECtHR. They also include extensive citations to case law as well as citations to select journal articles. While the primary focus is on the ECtHR, the chapters have an insightful comparative dimension. Chen and Renteln 2023 includes a comprehensive chapter on media and human rights in the authors’ introductory human rights textbook, which would be highly suitable for an undergraduate human rights course. See also the section Textbooks in the Oxford Bibliographies article “ Human Rights .” The edited volume Bollinger and Callamard 2021 takes a global norm approach to cover a wide range of free expression issues and would be an excellent supplementary text. Similarly, Hare and Weinstein 2009 is rich with international law content. The book contains more than thirty chapters written by a wide variety of scholars. Cram 2006 would be an excellent auxiliary text for any course focusing on freedom of expression in international law. Cram advances the contention that the judiciary in various jurisdictions plays a critical role in securing and promoting participatory democracy. He evaluates this thesis by reference to a variety of freedom of expression topics, including international issues arising under ECHR such as banning parties, party access to broadcast media, Holocaust denial, pro-Nazi expression, child pornography, and commercial expression. He also compares ECHR law to the law in Australia, Canada, the United Kingdom, and the United States.

Barendt, Eric. Freedom of Speech . 2d ed. Oxford: Oxford University Press, 2007.

DOI: 10.1093/acprof:oso/9780199225811.001.0001

Introductory chapters cover the scope of, and justifications for, freedom of speech and compare freedom of speech in liberal democracies. Remaining chapters are devoted to particular topics, including prior restraints, political speech, libel, copyright, assembly, protests, public fora, judicial process, pornography, commercial speech, media, Internet, campaign finance, employment, and education.

Bollinger, Lee C., and Agnès Callamard. Regardless of Frontiers: Global Freedom of Expression in a Troubled World . New York: Columbia University Press, 2021.

DOI: 10.7312/boll19698

Edited volume uses constructivist theory and comparative legal theory to understand what norms qualify as global freedom of expression norms, along with how those norms are contested and developed. Organizes nineteen chapters around four main themes: global norms, institutions and actors as norm entrepreneurs, anti-globalization and conflicts over norms, and global jurisprudence.

Chen, Cher W., and Alison D. Renteln. “Media and Human Rights.” In International Human Rights: A Survey . By Cher W. Chen and Alison D. Renteln, 541–587. Cambridge, UK: Cambridge University Press, 2023.

Comprehensive, media-focused overview of various freedom of expression and human rights issues. Covers issues such as Internet access, the rise of social media, digital privacy and the right to be forgotten, access to information, hate speech, the protection of journalists, and media in human rights advocacy.

Cram, Ian. Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies . Aldershot, UK: Ashgate, 2006.

Applies legal philosophy to case law to claim that the judiciary has an important role to play in promoting a more participatory democracy. A consensus exists that political expression is to be protected in liberal democracy. Considers the impact of ECHR on British and European law in various contexts.

Hare, Ivan, and James Weinstein, eds. Extreme Speech and Democracy . Oxford: Oxford University Press, 2009.

For specific chapters covering extreme speech in international law, see Dworkin 2009 and Malik 2009 (cited under Normative Justifications ), Fraser 2009 (cited under Genocide and Atrocity Crimes ), Finnis 2009 and McGoldrick 2009 (cited under Religion ), and Cram 2009 , Hare 2009 , and Whine 2009 (cited under Genocide and Atrocity Crimes ).

Janis, Mark W., Richard S. Kay, and Anthony W. Bradley. European Human Rights Law . Oxford: Oxford University Press, 2008.

Chapter 6 covers freedom of expression and association, and chapter 7 covers freedom of thought, conscience, and religion. Chapters integrate detailed analysis with extensive excerpts from ECtHR case law.

McGoldrick, Dominic. “Thought, Expression, Association and Assembly.” In International Human Rights Law . 4th ed. Edited by Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris, 209–234. New York: Oxford University Press, 2022.

DOI: 10.1093/he/9780198860112.001.0001

Provides a broad overview, replete with citations to international legal cases, of the four interrelated freedoms: thought (including religion, conscience, and belief), expression (including opinion and access to information), association, and assembly. Explains sources in international law, scope of freedoms, and recognized limitations.

Zeno-Zencovich, Vincenzo. Freedom of Expression: A Critical and Comparative Analysis . New York: Routledge-Cavendish, 2008.

DOI: 10.4324/9780203893081

Takes a policy-oriented look at contemporary freedom of expression issues arising in Europe, especially broadcasting, journalism, advertising, economic regulation, and the Internet. Includes ECHR and comparative European law.

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Acknowledgments

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

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Freedom of Expression in the Marketplace of Ideas

• Douglas M. Fraleigh - California State University, Fresno, USA
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A comprehensive guide to effective participation in the public debate about our most indispensable right: freedom of expression

• Demystifies free speech law , encouraging readers to grapple with the complexities of significant ethical and legal issues
• Sparks student interest in "big picture" issues while simultaneously covering important foundational material, including incitement, fighting words, true threats, obscenity, indecency, child pornography, hate speech, time place and manner restrictions, symbolic expression, restrictions on the Internet, and terrorism.
• Includes significant excerpts from landmark freedom of expression cases ,   including concurring or dissenting opinions where applicable, to help students become active learners of free expression rights 
• Offers critical analysis and alternative perspectives on free expression doctrines to demonstrate that existing doctrine is not necessarily ideal or immutable
• Includes a global perspective on free expression including a chapter on international and comparative perspectives that helps students see how the values of different cultures influence judicial decisions

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A Critical Analysis of the freedom of speech and expression of the Media: Whether charging journalists under 499 of the Indian Penal Code 1860 violate Article 19 of the Constitution of India?

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A Critical Analysis of Article 19 with latest judicial interpretation

Table of Contents

A Critical Analysis of Article 19 with latest judicial interpretation or Judgments 

Our Legal World Intern Written by: PREETKIRAN KAUR

INTRODUCTION

Rightly described as the “Magna Carta” of India, The Fundamental Rights are enshrined in Part III of the Indian Constitution from Articles 12 to 35. The rights conferred under Article 19 of the Constitution are the rights of a free man. These are natural law or common law rights and not created by a statute. As such every citizen is entitled to exercise such rights provided conditions to be imposed whenever so required by the State. 1

Every citizen of India has the personal liberty and freedom to exercise his/her fundamental rights, as enshrined in the Constitution. Article 19 is one of the key Articles that guarantee freedom of speech and expression. 

According to Article 19, every citizen has the right to freedom of speech and expression, assemble peacefully (without arms), form associations or unions, move freely throughout the country, reside and settle in any part of India and practise any profession, or carry on any occupation title 19 explicitly states that the right to freedom of opinion and expression also includes the freedom to hold opinions without interference and “to seek, receive and impart

DIRECTIVE PRINCIPLE OF STATE POLICY (DPSP) with case law

information and ideas through any media and regardless of frontiers.” Article 19 (5) of the Constitution “purportedly empowers” the states to enact legislation of their own for  protecting indigenous people.

To protect the sovereignty, integrity and security of India, the states can enact any law that imposes “reasonable restrictions” on the exercise of the rights as mentioned in Article . It is to be noted that the privileges under this article remain suspended during the proclamation of emergency.

  ARTICLE 19- RIGHT TO FREEDOM  

The Constitution of India contains the right to freedom in article 19 with a view of guaranteeing individual rights that were considered vital by the framers of the constitution. These rights have been provided to all citizens. However t, the state can check or control the above rights in the interest of sovereignty and integrity of India, public order, decency, defamation or friendly relation with foreign state or any other ground which it deems fit. This is the most disputed and comprehensive fundamental right which comprises of even the right of freedom of press and right to information.

  Article 19(1) guarantees to all citizens the six rights. These are: –

  a) Right to freedom of speech and expression

  Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several facets, including the right to express one’s conviction and opinions freely by words of mouth, writing, printing, pictures, photographs, cartoons or any

other mode. It means freedom of speech and expression is to express one’s convictions and opinions or ideas freely, through any communicable medium or visible representation, such as gesture, signs and the like. 2 It is one of the most basic and indivisible elements for a healthy and open-minded democracy. It allows people to freely participate in the social and political happenings of their country by opening up channels of free discussions of issues of concern. This right is available only to every citizen of India and not available to any person who is not a citizen of India i.e. foreign nationals. 3 Freedom of speech is the bulwark of a democratic Government because without its appeal to reason, which is the basis of democracy, cannot be made.

In Navtej Singh Johar v. UOI 4, it was held,

“Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression, which includes the freedom to express one’s sexual identity and personhood 3. Section 377, under the guise of targeting conduct, actually targets the identity of LGBT persons. Once it is accepted that homosexual orientation is innate, and not learned or deviant behaviour it follows that LGBT persons cannot  freely express themselves about their own sexual orientation and, therefore, their identity because they potentially become the target for criminal prosecution under Section 377. Article 19(1)(a), therefore, protects the fundamental freedom of LGBT persons to express their sexual identity, and orientation, through speech, manner of dressing, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgement of relationships, or any other means.”  

In Romesh Thapar v. The state of Madras 5   and Brij Bhushan v. the State of Delhi 6 , the Supreme Court took it for granted the fact that the freedom of the press was an essential part of the right to freedom of speech and expression. Patanjali Sastri J . in  Romesh Thapar observed that freedom of speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation.

  Freedom of speech and expression includes the following:

(i) Right to propagate one’s views as well as views of others.

(ii) Freedom of press.

In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of  India 7 court observed the importance of the press and held that “In today’s free world freedom of the press is the heart of social and politic intercourse. Press has rightly been described as the fourth pillar of democracy.

(iii) Freedom of commercial advertisements.

(iv) Right against tapping o telephonic conversation.

(v) Right to telecast, that is, the government has no monopoly on electronic media.

(vi) Right against bandh called by a political party or organisation.

(vii) Right to know about government activities.

Right to know is another facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the ambit of right to freedom of speech and expression.

(viii) Freedom of silence. In the case of Bijoe Emmanuel v. the State of Kerala 8 , the appellants were three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other.   

They refused to sing the National Anthem because they believed the singing of national anthem was against the tenets of their religious faith  They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung. However, under the instructions of Deputy Inspector of Schools, the Headmistress expelled the appellants from school. Supreme Court found their expulsion in violation both Articles 19 and 25 of the Constitution, holding that a reasonable limitation on the right to freedom of expression must be based on a “‘a law’ having statutory force and not a mere executive or departmental instruction.” 

Nature and Scope of Article 136 of the Constitution

(ix) Right against the imposition of pre-censorship on a newspaper.

(x) Right to demonstration or picketing but not right to strike.

The state can impose restrictions on the freedom to speech and expression mentioned in 19(2) on the following grounds:- 9

• Sovereignty and integrity of India
• Security of the state
• Public order
• Morality or decency
• Contempt of court
• Incitement to offence
• Friendly relations with foreign nations.

  Essential Elements of Restrictions

• Only by the authority of Law
• Judicial Review

b) Freedom of Assembly

Every citizen has the right to assemble peacefully without arms on public land. This right guarantees the right to hold public meetings, demonstrations and take out processions but not right to strike and any sort of violent, disorderly, riotous assemblies involving the use of arms and breach of public peace. Section 144 of the Criminal Procedure Code (1973) empowers a magistrate to restrain an assembly or procession if it poses a threat to human life, safety or public peace. Under Section 141 of the Indian Penal Code, an assembly of five or more people can be declared unlawful if they :

• Resist the enforcement of any law
• Forcibly occupy the property of any person
• Commit criminal trespass,
• Force an illegal act on a person
• Acting as a hindrance in the lawful working of government officials.

However, it can be restricted on the following grounds as mentioned in 19(3):-

• Sovereignty and integrity of India.

  In the recent case of Mazdoor Kisan Shakti Sangathan v Union Of India 10 , a writ petition was filed by the NGO Mazdoor Kisan Shakti Sangathan . They challenged the arbitrary imposition of police orders under section 144 of CrPC by which the  entire Central Delhi area was declared a prohibited area for holding any public meeting, dharna or peaceful protest. It was held that such a restriction was violative of Article 19(1)(a) which confers freedom of speech and expression, Article 19(1)(b) which confers right to assemble and Article 19(1)(d) which ensures right to carry out a peaceful march.

In Babulal Parate v. State of Maharashtra 11 citizens’right to take out procession or to hold da demonstration or public meetings as part of the freedom to assemble peacefully and without arms and right to move freely anywhere in the territory of India. It was also held that section 144 of CrPC was constitutional and the magistrate had the power to prevent such activities which would obstruct the public interest and peace.

  c) Freedom of Association

  All the citizens have the right to form associations or unions or co-operative societies which includes the right to form political parties, companies, partnership firms, etc. It also covers the negative aspect i.e. not to form or join an association or union.

  Aristotle has rightly said, “Man is a social animal”. They also facilitate the exchange of different ideas and convictions and also encourage the free flow of opinions in a systematic and well-organized manner. They inculcate the feeling of confidence  among the people engaged in it and give a chance to them to express their own viewpoint They serve as a latent source of information and knowledge to everyone around. Participation in these groups and clubs help an individual to survive and grow socially. But at the same time, it is pivotal to note that these organizations or political parties should not engross themselves in any kind of illegal or unlawful activities leading to resentment among people. They should aim towards harmonizing all the sections of society to work for a better tomorrow.

However, reasonable restrictions can be imposed on the following grounds mentioned in 19(4):-

i) Sovereignty and integrity of India.

ii) Public order

iii) Morality

   In O.K.A. Nair v. Union Of India 12 , an important question arose whether “ civilian’’ employees, designated as ‘ non – combatants’ such as cooks, chowkidars, lasers, barbers, mechanics, boot- makers, tailors etc . attached to the Defence Establishments

have a right to form associations or unions. The Supreme Court rejected the contentions of the appellants and held that the civilian employees of the Defence Establishments answer the description of the members of the Armed Forces within the meaning of Article 33 and, therefore were not entitled to form trade unions.

  d) Freedom of movement

  This right guarantees every citizen the right to move freely throughout the country i.e. from one state to another or from one place to another within a state. India is one entity as far as its citizens are concerned hence aims to promote a feeling of unity and  oneness. Freedom of movement has two connotations i.e.Internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). However, only the first aspect is protected by Article 19.

  Reasonable restrictions can be imposed as mentioned in 19(5):-

  i) Interests of the general public.

ii) Interests of any scheduled tribe.

  Restrictions can be imposed only by or under the authority of law.

• Restrictions cannot be imposed by the executive action without legal authority.
• Restrictions must be reasonable. Restrictions must be related to the purpose specifically mentioned in these clauses.
• Restrictions can be imposed only by or under the authority of law. Restrictions cannot be imposed by the executive action without legal authority.
• Restrictions must be related to the purpose specifically mentioned in these clauses.

   Restrictions on the movements of persons afflicted with by AIDS have been held by Bombay High Court to be valid in the case of  Lucy R. D&#39; Souza v.  State of Goa 13 .  

Restrictions to protect the interests of scheduled tribes have been stipulated for the aboriginal tribes with their distinct culture, language and customs. 14 It was held in Dhan Bahadur Ghori v. State of Assam 15 that unrestricted entry of outsiders&#39; in areas inhabited by the tribal folks might jeopardize their very nexistence and interests.

  e) Freedom of Residence

  Every citizen has the right to reside and settle in any part of the country except Jammu and Kashmir. This right has two dimensions: (a) temporarily settling at any place (b) permanently settling at a place i.e. to set up a home or domicile. Reasonable restrictions can be imposed on two grounds as mentioned in 19(5):

i) Interests of the general public.

ii) Interests of any scheduled tribes.

  The rights of outsiders to reside and settle in tribal areas are restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of the country, tribals have been given the right to protect their properties.

  In Ibrahim Wazir v. State of Bombay 16 , the appellant was an Indian citizen who came to India without a permit and was arrested and deported to Pakistan by the Government under the Influx from Pakistan (Control) Act, 1949. Court held that the order of removal was invalid as coming of a citizen to his home country without a permit was not an offence which would justify his expulsion from the country.

In State of Madhya Pradesh v. Bharat Singh 17 , Section 3 (1) (b) of the M.P. Public Security Act, 1959 empowered the State Government to issue an order requiring a person to reside or remain in such a place as may be specified in the order to ask him to leave the place to go to another place selected by the authorities in the interests of security of the State or public order.

g) Freedom of profession

  sub-clause(g) of Article 19 (1) confers a right to all persons to do any particular type of business of their choice but this does not confer the right to do anything consider illegal in eyes of law or to hold a particular job or to occupy a articular post of the

choice of any particular person. 18 Further Art 19(1) (g) does not mean that conditions be created by the state or any statutory body to make any trade lucrative or to procure customers to the business/businessman. 19 Moreover, a citizen whose occupation of a place is unlawful cannot claim fundamental right to carry on business in such place since the fundamental rights cannot be availed in the justification of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory functions. 20

All citizens can practise any profession or carry on any occupation, trade or business. However reasonable restriction can be imposed on grounds of interest of the general public as prescribed under article 19(6). Further, the State has the right to rescribe professional or technical qualifications to practise any profession or to carry out any trade. It can also carry on a trade or business as a monopoly.

  In Luxmi Khandsari v. State of Uttar Pradesh 21 , a notification was issued under Sugar Cane control Order to stop crushers from producing khandsari so that the production of white sugar could be increased. It was ordered so to make the sugar available o consumers at a reasonable price and was held to be imposing estriction in the interest of the public on the right of persons using rushers and therefore valid.

  In the liquor trading case of Nashirwar v. State of Madhya Pradesh 22 , the Supreme court interpreted that there was no inherent right to carry on trade in liquor because it was clearly in against of interest of the general public.

  CONCLUSION

The power of words can never be underestimated since words and language are the only things that separates man from beast. It is the importance of words which helped in the exchange of ideas which led to the development of civilization. The importance was identified by the framers of the constitution hence duly protected by the Constitution. Moreover, they are justiciable. One can move to the court in case of infringement of one’s rights. 

  First amendment to Article 19 was made in the year 1951 by the Nehru government when it introduced clauses against “abuse of freedom of speech and expression”. The clauses 2, 3 and 4 of Article 19 were amended in 1963 to enable the states to make laws

as well as impose restrictions on the exercise of the rights to preserve the sovereignty and integrity of India. 

There have been cases of violation of Article 19. Recently, there have been instances of individuals being arrested under section 66A of the Information Technology (IT) Act  for posting ‘objectionable comments and caricatures’ of political figures on social media. This has led to a furore among the citizens of the country who have claimed that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution.  

Another form of violation of Article 19 that’s rampant in India is the hate speeches that we often get to hear from the political leaders.  These hate speeches come with the malicious intention of “outraging the religious feelings” and hence they incite communal violence and endanger public tranquillity, which is against the principle of Article 19.

  John Stuart Mill argued that without human freedom there can be no progress in  science, law or politics, which according to him required free discussion of opinion. Mill’s On Liberty, published in 1859 became a classic defence of the right to freedom of expression in which he recognised freedom of thought, taste and union as three basic liberties. To sum up, I would like to quote John Milton –

Can a person waive any of the Fundamental Rights?  

 “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton.

1 A.K. Gopalan v. State of Madras, AIR 1950 SC 27

2 Lovell v. City of Griffin, (1937) 303 US 444.

3 Hans Muller of Nurenburg v. Supdt., Presidency Jail, Calcutta, AIR 1955 SC 367.

4 (2018) 1 SCC 791

5 1950 SCR 594

6 1950 SCR 605

7 1986 AIR 872

10 Writ Petition (Civil) No. 1153 of 2017

11 1961 SCR (3) 423

12 AIR 1976 SC 1179

13 AIR 1990 Bom 355

14 Retrieved from &lt;https://www.telegraphindia.com/opinion/when-movement-is-not-free/cid/1451494&gt; Last

visited on 26 May 2019 at 7:30 pm.

15 AIR 1953 Gau 61

16 AIR 1954 S.C. 299

17 AIR 1967 S.C. 1170

18 Fertilizer Corporation kamgar Union, Sindri v.UOI; AIR 1981 SC 344.

19 Chaitanya Prakesh v. Board of secondary Education rajasthan; 1960 Raj L.W. 209.

20 State of Gujarat v.Dharamdass; AIR 1982 SC 781

21 1981 SCR (3) 92

22 AIR 1975 SC 1368

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Introduction

• Published: January 2021
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Freedom of speech is a central commitment of political liberalism, a principle of positive constitutional law in virtually all modern constitutions and a principle of international human rights law. 1 Close Although among the most widely agreed upon and celebrated legal and constitutional principles of modern times, it is also the source of enduring and intense disagreement. We cannot fail to notice, moreover, that this Handbook is to be published at a time of some controversy about the power of freedom of speech in the face of new threats to democracy 2 Close and the challenges of the digital economy. 3 Close At worst, freedom of speech might even be part of the problem—a principle weaponized against the ideals from which it sprang. 4 Close

In this tumultuous context, this Handbook provides a comprehensive exploration of freedom of speech both as a political idea and as a legal principle. It is arranged in three parts: The chapters in Part I focus on freedom of speech as a political idea and upon the ideas and rationales that underlie it; the chapters in Part II focus on distinctive features of freedom of speech as a legal principle. In Part III the Handbook, the chapters focus on a range of controversies that have arisen in constitutional systems throughout the world and which illustrate and elaborate upon the general themes of Parts I and II .

A. Fundamental Questions and Perspectives

Part I begins with the most fundamental questions about the nature of freedom of speech: its history and rationales. Although a form of freedom of speech was evident in ancient times, 5 Close it is Enlightenment thinking that is usually credited with the decisive influence on modern conceptions. 6 Close Its influence is especially well documented by scholars of the First Amendment to the Constitution of the United States. In Chapter 2 , Vincent Blasi, in a subtle exploration of the classic arguments for freedom of speech, traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica , a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. 7 Close

Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to Catholic religious texts. The most famous and influential exposition of a liberal theory of freedom of speech is found in the work of John Stuart Mill. 8 Close Mill’s argument for freedom of speech, commonly understood as based on freedom of speech as a facilitator of the search for truth and knowledge, 9 Close is central to Chapters 1 and 3 . In Chapter 1 , Christopher Macleod reminds us of the precise nature of Mill’s claim. Three especially important points come to the fore. First, Mill’s argument turns on the fallibility of human knowledge and his belief in the consequent value in subjecting ideas to contradiction. Second, while in constitutional law the focus has been on interference with freedom of speech by the state, Mill was as much concerned with ‘moral reproach’ that arises from social intolerance and social pressure. Finally, by virtue of its focus on the pursuit of truth, the Millian argument is focused on discussion rather than expression more broadly and therefore has little obvious application to non-propositional expression found in instrumental music and abstract art. (A theme later taken up by others, 10 Close including Mark Tushnet who, in Chapter 23 , explores the problem of incorporating music and art into a theory of freedom of speech without also including a far wider range of human activities.)

The complexities of the truth justification for freedom of speech are further explored by William Marshall in Chapter 3 . Marshall identifies its many flaws: the implausibility of the claim that freedom of speech is a mechanism for producing truth; the problems of public irrationality and apathy in a ‘post-truth’ age; and, most fundamentally, the difficulties in identifying the normative appeal of truth itself, especially in circumstances in which it causes harm. Abandoning these traditional arguments for truth, Marshall appeals to truth as an ideal serving a narrative function ‘akin to the role played by myth in religion’. 11 Close

The argument from truth is one of three prominent lines of thought evident in an extensive philosophical literature on freedom of expression. Each of these lines of argument are explored in chapters in Part I . A second line of argument relies on the connection between freedom of speech and autonomy. Freedom of speech is said to protect (or to be integral to) individual autonomy by allowing individuals to form their own opinions about their beliefs and actions or by enabling ‘self-development’; or because respecting freedom of speech accords (or is constitutive of) dignity, equal concern and respect due to all individuals. In Chapter 4 , Catriona Mackenzie and Denise Meyerson explore the autonomy argument generally, and in Chapter 6 , Dieter Grimm explores the argument from dignity.

The third line of argument, perhaps the most widely influential in the constitutional law of freedom of speech, relies upon the connection between freedom of speech and democratic self-government. Ashutosh Bhagwat and James Weinstein explore the argument from democracy in Chapter 5 .

These three lines of argument—something of a ‘classic trio’ of justifications for freedom of speech—are the usual starting point of philosophical inquiry. But each gives rise to complex problems. Some are common to each rationale. In an echo of some arguments made against the truth rationale, arguments from autonomy are criticized for their failure to focus on the conditions necessary for the realization of autonomy. This line of thought has been especially prominent in feminist analysis of freedom of speech. In their chapter, Mackenzie and Meyerson explore a number of ways in which the problem has been addressed, from Susan Brison’s forthright critique of the autonomy justification for permitting hate speech 12 Close and for failing adequately to distinguish autonomous speech from non-speech forms of autonomy, 13 Close to Susan Williams’s idea of relational autonomy. 14 Close

Another kind of challenge for these arguments arises from the complexity of the ideas that underscore each rationale. This emerges clearly in Bhagwat and Weinstein’s chapter on the democracy justification. As they show, it is well recognized that freedom of speech performs an essential informing function, enabling the people to vote and participate in public discourse, and informs representatives of the views of the people. In addition, free speech also serves a legitimating function because law’s legitimacy requires that the people are free to take part in the public deliberations through which public opinion, and ultimately laws, are formed. Distinctively, Bhagwat and Weinstein take the legitimating function of freedom of speech to be crucial not just to the legal system as a whole but also to the legitimacy of individual laws and posit that laws banning hate speech may render other laws (such as anti-discrimination laws) illegitimate.

Equally, however, Bhagwat and Weinstein show that the nature of a right of freedom of speech will depend upon which conception of democracy, among the multiple and competing conceptions, dominates. For instance, where democracy is representative rather than direct, or where it prizes public deliberation over the aggregation of pre-existing interests, greater emphasis will be placed on public discourse. In such democracies, freedom of speech is likely to cover a broader range of public discussion beyond that required for the process of voting and law making. 15 Close

An important distinction, which illuminates matters taken up in later parts of the book, lies in the distinction between relatively thick (or substantive) understandings of democracies over relatively thin, proceduralist accounts. Of these two conceptions, the thicker idea of democracy provides a basis for more extensive limits on freedom of speech. Where democracy is taken to be instrumental to certain ends, freedom of speech can be limited where it makes little contribution to (or even frustrates) such ends. At this point, the long debate about the regulation of hate speech enters the picture again. Substantive conceptions of democracy (which usually entail that a democratic polity will ‘demonstrate tolerance, mutual respect, and an embrace of diversity’) provides a foundation for arguments that ‘the state not only need not tolerate, but to the contrary has a positive obligation to suppress hate speech’ 16 Close (a matter of which Weinstein and Bhagwat are evidently sceptical).

The idea that democracy is instrumental to a more fundamental value is evident in Dieter Grimm’s chapter ‘Freedom of Speech and Human Dignity’. Writing from within the German constitutional tradition, in which dignity is a foundational value receiving explicit constitutional protection, Grimm writes: 17 Close

We do not have freedom of speech for democracy’s sake, but we have democracy because it is the form of political rule best compatible with the dignity and autonomy of the individual.

The dignity-based conception of freedom of speech requires that the principle extends well beyond political speech. Speech is valuable because it allows humans to form social relationships and develop their personality—matters integral to human dignity. However, dignitarian arguments also justify limits on freedom of speech where that speech violates human dignity. Thus Grimm shows how dignity may furnish an argument for the regulation of hate speech where that speech: 18 Close

attempts to deny human beings individual personhood, to strip them from all rights (or from the right to have rights), to classify certain individuals as such or because of their group membership as life not being worth lived, to claim that by their behaviour they have forfeited any claim to respect.

Dignity’s role as both a justification for freedom of speech and for limiting it, points to a more general dynamic. Where freedom of speech is taken to be instrumental to a more fundamental value, it will usually be the case that the underlying value—equality, autonomy, dignity—will in some circumstances be deployed as an argument for freedom of speech and in others in support of a limitation. This ‘double-sidedness’ of freedom of speech is a particularly perplexing feature of free speech argumentation. 19 Close It means, as Alon Harel shows in his chapter on hate speech and as Gautam Bhatia shows in his chapter on religious speech, that many arguments about freedom of speech are not a defence of a liberal ideal against illiberalism. 20 Close Rather, many free speech arguments occur within liberalism and their resolution depends upon a quite precise rendering of the relationship between freedom of speech and its underlying values.

As the chapters so far mentioned demonstrate, there is a rich philosophical literature about freedom of speech. A final contribution in this vein from Wojciech Sadurski shows the power of philosophical argument to illuminate even most seemingly technical aspects of free speech. 21 Close The chapter explores the salience of the Rawlsian idea of public reason for freedom of speech. Sadurski argues that the idea helps explain the focus in free speech law in a number of countries on the distinction between content-based and content-neutral laws (and relatedly on viewpoint-based and viewpoint-neutral laws). Public reason analysis explains this focus, and reveals as potentially illegitimate laws based on reasons that are non-endorsable by reasonable persons to whom they apply.

Contributions from other disciplines to scholarship on freedom of speech have been more limited. In an important exception to this trend, Daniel Hemel, in Chapter 7 , explores the potential for economic analysis to illuminate freedom of speech. Information economics, he argues, has the potential to explain failures in the ‘marketplace of ideas’. Just as information asymmetry in the market for goods and services allows low-quality goods and services to drive high-quality goods and services out of the marketplace, there is reason to think that ‘bad speech’ will tend to drive out the ‘good’. For good information to compete in the market, readers and listeners must be able to tell the difference between good and bad information—an idea with particular resonance in the age of ‘fake news’, and with potential implications for the design of free speech laws. 22 Close

B. Freedom of Speech as a Legal Idea

Part II of the volume turns from general questions about the nature of and justifications for freedom of speech to an examination of pervasive issues that arise with particular clarity when freedom of speech is applied as a legal principle.

The focus of most of these chapters is on freedom of speech as a principle of constitutional law, which in turn provides the basis for an individual to challenge the law. However, there are many ways in which a free speech principle might operate in law: it may guide the interpretation of statutes and other instruments; in common law systems at least, it may influence the development of case law; and it is a principle of international law (as canvassed by Michael Hamilton in Chapter 11 ).

Conceived at a high level of generality, the framework for the determination of legal free speech claims is remarkably similar across a wide range of legal systems. As Stephen Gardbaum shows in his close but broadly comparative analysis in Chapter 12 , the nature and extent of a free speech right depends upon a number of legal components: (1) the legal source of the right (in common law, statute or a constitution) and the force of the right having regard to how it is enforced, and whether and how it can be superseded; (2) the subject of the right (citizens, natural or legal persons); (3) the scope of the right; (4) the kind of obligation it imposes on others (a negative prohibition or a positive obligation); (5) who is bound to respect a right of freedom of expression and against whom the right may be asserted; and (6) whether and how a free speech right might be limited. 23 Close

The first two chapters in Part II take up two of these elements in detail. Tracing the distinction in free speech law between ‘coverage’ and ‘protection’ influentially illuminated in his work, Schauer, in Chapter 9 , addresses the question acts or behaviour a principle of freedom of speech applies. 24 Close

This question of coverage (or in Gardbaum’s terms ‘scope’) can be invisible in legal analysis especially if it is abundantly clear that the activity concerned is ‘speech’ within the accepted meaning of the word or if techniques of legal interpretation (text, history, and precedent, for instance) provide a ready answer. But, as Schauer shows, in many cases neither speech nor the common alternative ‘expression’ adequately capture the activity to which the principle applies. The only coherent way to approach the question of coverage is by reference to the underlying rationale or rationales for freedom of speech. In this light, the question of ‘coverage’ turns out to be highly revealing of some fundamental features of freedom of speech, namely that it is a complex ideal resting on multiple justifications.

The question of ‘protection’ (which corresponds to Gardbaum’s final component, whether and to what extent the free speech right may be limited) goes to the weight or strength of the protection from regulation conferred on that which is covered. In the context of constitutional law, it is reflected in legal doctrines formulated by courts. The protection question brings to the fore the much-noted ‘US exceptionalism’ with respect to freedom of speech in constitutional law. As is well known, First Amendment law is characterized by a conceptual or categorial approach that applies relatively specific, rule-like limitations, as compared with the more flexible approach of ‘structured proportionality’ that dominates the rest of the world.

The relative merits of these approaches are the subject of an enormous literature in which proportionality analysis is usually lauded for its flexibility and context-sensitivity, as well as the transparency it purportedly brings to judicial reasoning. Some of its more influential expositions—including the seminal work of Robert Alexy—make the even more ambitious claim that proportionality is necessary or inevitable 25 Close or that it frees courts of difficult and contested decisions. 26 Close In Chapter 10 , ‘Proportionality and Limitations on Freedom of Speech’, Grégoire Webber mounts a critique of these claims on behalf of proportionality, and a defence of approaches that treat freedom of speech as absolute, at least in the sense as not subject to exception within its scope.

In Chapter 13 , ‘Positive Free Speech: A Democratic Freedom’, Andrew Kenyon then takes up Gardbaum’s fourth component, the kind of obligations imposed, arguing that an effective free speech right must necessarily be conceived as including positive obligations on the state.

The final chapter in Part II , ‘Speaking Back’, turns to the question of remedies and responses. In it, Katharine Gelber interrogates the common claim that the remedy for falsehoods and other forms of ‘bad speech’ is ‘more speech, not enforced silence’. 27 Close Applied indiscriminately, the idea of ‘speaking back’ is ‘fanciful at best and harmful at worst’ but Gelber defends it in some contexts, especially if—echoing Kenyon’s chapter—freedom of speech is conceived of as requiring the state to empower ‘speaking back’. 28 Close

The notion of state-backed ‘speaking back’ is picked up, again, in Caroline West’s chapter on pornography. If certain pornography perpetuates or legitimates harmful sexist messages, West sees a role for state-backed ‘speaking back’; specifically, public education aimed at countering harmful sexist messaging. But, she cautions, there are also reasons to doubt its likely effectiveness. Harmful effects of pornography on its consumers may not be fully ‘mentally intermediated’, and so not amenable to rational revision in response to counter-speech. 29 Close

C. Contexts and Controversies

The chapters in Part III focus on particular contexts and controversies that have proved especially important and interesting for the application of free speech principles. The chapters are all rich with insights on the particular controversies they cover, and the themes explored in the first two parts. For example, question of ‘coverage’ is addressed in particular contexts by Frederick Schauer’s chapter on commercial advertising, 30 Close Mark Tushnet’s chapter on art, 31 Close Caroline West’s chapter on pornography, 32 Close and Alon Harel’s chapter on hate speech. 33 Close

Similarly, the democracy justification is revisited and elaborated upon in chapters by Joo-Cheong Tham and Keith Ewing on elections, 34 Close Andrew Kenyon on defamation of public officials, 35 Close Christoph Bezemek on public insult, 36 Close and Timothy Zick on parades, picketing, and demonstrations. 37 Close It is also addressed in Cynthia Estlund’s chapter on the workplace, which explores the implications for democratic government of employment-based limitations on freedom of speech. 38 Close

These chapters are complemented by a pair of chapters that consider the challenges and complications arising from the nature of mass communication in the traditional media 39 Close and the digital economy. 40 Close

The ‘double-sidedness’ of freedom of speech is revisited in a group of chapters which focuses on the particular harms that may be caused by speech. Geoffrey Stone revisits the question of speech causing unlawful conduct, 41 Close a general theme picked upon in the contemporary context of terrorism by Eliza Bechtold and Gavin Phillipson. 42 Close Alon Harel’s chapter on hate speech, 43 Close Gautam Bhatia’s chapter on religious speech, 44 Close Caroline West’s chapter on pornography, 45 Close and Ioanna Tourkochoriti’s chapter on privacy 46 Close focus on harms of a different kind which implicate other fundamental rights like dignity, equality, religious freedom, and privacy.

Among these chapters, First Amendment exceptionalism is evident again. As these chapters show, First Amendment law has had enormous influence on the development of free speech law globally, reflecting the comparatively long history of judicial review of the First Amendment, and the volume of case law and secondary literature it has produced. But as these chapters also show, many substantive aspects of First Amendment law are unique and, on questions as diverse as electoral funding, advocacy of illegality, 47 Close commercial advertising, 48 Close defamation and hate speech, 49 Close most democracies have taken a different path. 50 Close

The intellectual influence but substantive exceptionalism of First Amendment law is especially evident in chapters by Andrew Kenyon, Christoph Bezemek, and Joo-Cheong Tham and Keith Ewing. Each of these chapters takes an iconic First Amendment case and shows both how it illuminates freedom of speech and how it has been departed from elsewhere. Andrew Kenyon places New York Times v Sullivan 51 Close in the context of defamation law generally, noting how courts in other countries have been influenced by and yet departed from its approach. The exceptionalism of Sullivan , he argues, depends both on a relatively thin conception of the value of reputation and on a particular understanding of the idea of public debate. Christoph Bezemek takes the closely related question of ‘fighting words’ and the US Supreme Court’s decision in Chaplinsky v New Hampshire 52 Close as his centrepiece for a discussion of public insult. Chaplinsky is, of course, something of an ‘orphan’ in the First Amendment canon. 53 Close It is tempting to think that while its ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights (ECtHR) and in domestic jurisdictions. But Bezemek shows that the approach of the ECtHR is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Turning to the closely related question of insult to public officials (also discussed by Kenyon), Bezemek focuses again on structural differences in doctrine. Expanding his focus to include the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights, he shows that each proceeds on a rather different conception of ‘public figure’.

Joo-Cheong Tham and Keith Ewing, in the most critical of these three chapters, take Citizens United v Federal Electoral Commission 54 Close as the centrepiece of their critique of First Amendment law. They identify the First Amendment’s core non-redistributive principle as based on a uniquely US mistrust of government regulation of speech and laissez-faire attitude to the distorting power of private wealth. The European social-democratic model, by contrast, is premised on equality as a foundation of a just electoral system and, because the state is viewed less negatively, permits more government intervention in pursuit of that equality.

Their critique introduces a second theme: the problems that that arise from the exercise of private power. Classically, freedom of speech is conceived of as a negative right that operates to restrain government power, leaving private relations untouched. But, as Cynthia Estlund shows, unrestrained power of employers to interfere with the speech rights of employees would make public discourse impossible. Similarly, an unrestrained power to regulate speech activity on private property would prevent the collective action necessary for civic engagement that is central to ‘cultural identification, acts of resistance, and … political contention in a democracy’. 55 Close In Estlund’s chapter on the workplace, and Zick’s chapter on parades, picketing, and demonstrations, the assessment of First Amendment law is somewhat hopeful. Estlund traces the way that US courts have, over the last century, carved out exceptions to the rights of employers to respect employees’ freedom of speech, and detects a strand of ‘neo-republican thought’ in First Amendment law, sensitive to the dominating power of employers. 56 Close Timothy Zick shows how the US Supreme Court, relying on the concept of the ‘public forum’, built an ‘expressive topography’, a doctrinal categorization of public places that limits powers of regulation in these spaces. 57 Close

Nonetheless, Estlund concludes that the protection of freedom of speech in the workplace remains normatively deficient. Indeed the ‘weaponization critique’ mentioned at the outset, and pervasive in the commentary on the protection of commercial advertising, is traceable, at least in that language, to Justice Kagan’s dissent in a labour law case, Janus v AFSCME, in which the majority held that requiring public sector employees to pay union dues was invalid on First Amendment ‘compelled speech’ grounds. 58 Close Turning to public forums, the exclusion of private property has always meant that some places (privately-owned airports, shopping centres, malls, and plazas) where citizens seek to gather for free speech purposes may be excluded from the public forum doctrine. But the problem is much exacerbated by the increasing privatization of public space.

Outside First Amendment law, attitudes towards private power are quite different and the problems posed by private actors restricting freedom of speech or distorting public discourse can be dealt with in a more straightforward fashion. Three features of free speech law are especially pertinent to this difference. First, as Ioanna Tourkochoriti explains in her chapter on privacy, other systems of law (in her chapter—Germany and France) allow for the ‘horizontal’ application of free speech rights against private individuals. 59 Close By comparison, the ‘verticalist’ position usually taken to be exemplified by the First Amendment, applies free speech rights only against the state, reflecting an assumption that threats to freedom of expression are characterized as arising principally or only from the state. The line between these two positions can be blurry and may be less important in practice if there is a sufficiently capacious ‘state action’ doctrine. 60 Close The distinction between horizontal and vertical applications of rights, however, is indicative of a markedly different understanding of the role of constitutional rights. Second, in most other legal systems, the mistrust of government that characterizes First Amendment law is moderated and the state is more likely to be regarded as a positive actor in pursuit of legitimate goals. 61 Close This moderation of mistrust of government gives governments greater scope to address harms caused by private actors, notably on matters like hate speech and electoral funding.

Finally, in some systems, the problem of private power is addressed through positive obligations imposed upon the state. In his chapter on media, 62 Close Dieter Grimm explains Germany’s broadcast jurisprudence as a means to address the problems of private power in public discourse. Under the German Basic Law, the German state is under a ‘double obligation’. It must not unduly interfere with the freedom of media, but it is also required to act to protect the media against attempts of private actors that may lead to distortion of public discourse or dysfunction within the media.

D. The Changing Context

Grimm’s chapter introduces our final theme: the changing nature and significance of the forums in which speech occurs. The most compelling development is the rise of the digital economy, which radically changes the dynamics of freedom of speech. The Internet is the subject of Gregory Magarian’s chapter, 63 Close although the many complications posed by the Internet as a speech forum are explored in other chapters, including those on pornography, hate speech, media freedom, and international law.

As Magarian shows, the Internet offers huge opportunities for realizing the social benefits of freedom of speech—making powerful contributions to political movements and promoting art, science, and commerce—but by the same token this new medium amplifies the possibilities for harm and poses a distinct set of challenges.

For example, the ease of communication and vast increase in the quantity of available information has led to the breakdown of the traditional media and the ‘gatekeeping’ function they performed. That, combined with anonymity and the highly manipulable nature of digital imagery, makes it very difficult to assess the credibility of information before us. Ordinary citizens can disguise themselves as credible news sources; political operatives and agents of foreign governments can be made to look like ordinary citizens; images and even video can be faked. The result is a torrent of low-quality information, much of it worthless or worse, deliberately spread to serve disruptive and nefarious interests, foreign and domestic. Such speech may proliferate more readily, rapidly, and to a wider audience, amplifying its potential harm.

These challenges run especially deep because the shape of a solution is very unclear. The devolved and transnational architecture of the Internet poses real barriers to regulation even pursuant to horizontal and positive conceptions of freedom of speech. The problem of the Internet will require creative regulatory solutions and to which constitutional rights of freedom of speech will need to adapt. 64 Close At the same time, creative and novel regulatory solutions to harmful online speech may also have unintended adverse consequences. As Bechtold and Phillipson observe in their chapter, there is a risk that regulations aimed at swiftly and cost-effectively stemming the proliferation of harmful material online can be excessively broad and speech-restrictive, shift the burden of regulation onto transnational corporations, and lack adequate safeguards, scrutiny, and attention to rights. 65 Close

This leads us to a closing reflection on the changing nature of the subject of this volume. It is barely more than a century since the US Supreme Court began seriously to expound free speech norms; only seventy years since the end of World War II inspired the global rise of human rights, and only thirty years since democratic constitutionalism—and with it constitutional rights of freedom of speech—became a truly global phenomenon. Yet in this time, the nature of public discourse has transformed radically. Today, vast swathes of ordinary human communication occur in previously unrecognizable ways.

Freedom of speech will be a treasured norm at least for as long as democracies persist, but beyond that simple fact, perhaps all that can be counted upon is that the fundamental and difficult questions which are the subject of this volume, and these chapters, will remain a source of contestation in law and politics.

E. With Thanks

Fittingly, given freedom of speech’s transnational reach, this volume was a transnational effort and was both enabled—and at times challenged—by communication across the Internet. As editors, we express our thanks to the authors for their commitment to this project; their willingness to revise chapters during the editing process and to keep to the necessary word limit. We are delighted to have brought such a talented group of scholars together in these pages.

Adrienne Stone wishes to thank colleagues at Melbourne Law School in the Centre for Comparative Constitutional Studies and the Laureate Program on Comparative Constitutional Law for their assistance. Aftab Hussain and Gabrielle Dalsasso in their respective roles as Centre Administrator and Project Manager for the Laureate Program ensured the smooth running of other aspects of academic life, freeing time to work on this volume. Four talented and hardworking research assistants—Joshua Quinn-Watson, Colette Mintz, Anne Carter, and Gary Hansell—performed important research and editorial tasks that greatly improved the Handbook. Their work and Adrienne Stone’s contribution was generously supported by the Australian Research Council through an Australian Laureate Fellowship.

We are finally very grateful to Oxford University Press and its editorial staff for initiating the project and for their expertise and patience through all stages of its production. We are proud and delighted to have made a contribution to the very fine Handbook series.

Freedom of speech is used here interchangeably with ‘freedom of expression’, though on the relationship between these concepts, see Frederick Schauer ‘What is Speech? The Question of Coverage’ Chapter 9 in this volume.

Mark Graber, Sanford Levinson, and Mark Tushnet, (eds), Constitutional Democracy in Crisis? (OUP, 2018).

Tim Wu, ‘Is the First Amendment Obsolete?’ (2018) 117 Mich L Rev 547, 568.

Janus v AFSCME, Council 31 , 138 S Ct 2448, 3501 (2018). See also Cynthia Estlund, ‘Freedom of Expression in the Workplace’, Chapter 22 in this volume.

DM Carter, ‘Citizen Attribute, Negative Right: A Conceptual Difference between Ancient and Modern Ideas of Freedom of Speech’ in Ineke Sluiter and Ralph Rosen (eds), Free Speech in Classical Antiquity (Brill 2004).

Elizabeth Powers (ed), Freedom of Speech: The History of an Idea (Bucknell UP 2011).

John Milton, Areopagitica: A Speech for the Liberty of Unlicensed Printing, to the Parliament of England (JC Suffolk ed, University Tutorial P 1968).

John Stuart Mill, On Liberty (David Spitz ed, WW Norton 1975).

An alternative understanding of Mill sees On Liberty as less about the search for truth and more about the development of certain virtues of intellectual character. See Vincent Blasi, ‘Shouting “Fire!” in a Theater and Vilifying Corn Dealers’ (2011) 39 Cap U L Rev 535.

See also Frederick Schauer, ‘What is “Speech”? The Question of Coverage’, Chapter 9 in this volume.

William P Marshall, ‘The Truth Justification for Freedom of Speech’, Chapter 3 in this volume, p. 57.

See Catriona Mackenzie and Denise Meyerson, ‘Autonomy and Free Speech’, Chapter 4 in this volume, p. 78.

Susan Brison, ‘The Autonomy Defense of Free Speech’ (1998) 108 Ethics 312.

See Catriona Mackenzie and Denise Meyerson, ‘Autonomy and Free Speech’, Chapter 4 in this volume, p. 74. See also Catriona Mackenzie and Natalie Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (OUP 2000).

Ashutosh Bhagwat and James Weinstein, ‘Freedom of Expression and Democracy’, Chapter 5 in this volume.

Ibid p. 102.

Dieter Grimm, ‘Freedom of Speech and Human Dignity’, Chapter 6 in this volume, p. 110.

Ibid p. 114.

Adrienne Stone, ‘Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech’ (2017) 32 Const Comment 687.

Alon Harel, ‘Hate Speech’, Chapter 25 in this volume; Gautam Bhatia ‘Religious Speech’, Chapter 27 in this volume.

Wojciech Sadurski, ‘Freedom of Speech and Public Reason’, Chapter 8 in this volume.

Daniel Hemel, ‘Economic Perspectives on Free Speech’, Chapter 7 in this volume.

Stephen Gardbaum, ‘The Structure of a Free Speech Right’, Chapter 12 in this volume.

Frederick Schauer, ‘What is “Speech”? The Question of Coverage’, Chapter 9 in this volume.

Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002) 66–9.

David Beatty, The Ultimate Rule of Law (OUP 2004).

Whitney v California , 274 US 357 (1927) 377.

Katharine Gelber, ‘Speaking Back’, Chapter 14 in this volume, p. 262.

Caroline West, ‘Pornography’, Chapter 26 in this volume, p. 497.

Frederick Schauer, ‘Free Speech and Commercial Advertising’, Chapter 24 in this volume.

Mark Tushnet, ‘Music and Art’, Chapter 23 in this volume.

Caroline West, ‘Pornography’, Chapter 26 in this volume.

Alon Harel, ‘Hate Speech’, Chapter 25 in this volume.

Joo-Cheong Tham and Keith Ewing, ‘Free Speech and Elections’, Chapter 17 in this volume.

Andrew T Kenyon, ‘Defamation Law, Sullivan , and the Shape of Free Speech’, Chapter 15 in this volume.

Christoph Bezemek, ‘Insult of Public Officials, Chapter 21 in this volume.

Timothy Zick ‘Parades, Picketing, and Demonstrations’, Chapter 20 in this volume.

Cynthia Estlund ‘Freedom of Expression in the Workplace’, Chapter 22 in this volume.

Dieter Grimm, ‘Freedom of Media’, Chapter 29 in this volume.

Gregory P Magarian, ‘The Internet and Social Media’, Chapter 19 in this volume.

Geoffrey R Stone, ‘When is Speech That Causes Unlawful Conduct Protected byFreedom of Speech? The Case of the First Amendment’, Chapter 18 in this volume.

Eliza Bechtold and Gavin Phillipson, ‘Glorifying Censorship? Anti-Terror Law, Speech, and Online Regulation’, Chapter 28 in this volume.

Gautam Bhatia, ‘Religious Speech’, Chapter 27 in this volume.

Ioanna Tourkochoriti, ‘Privacy and Speech’, Chapter 16 in this volume.

Eliza Bechtold and Gavin Phillipson, ‘Glorifying Censorship? Anti-Terror Law, Speech and Online Regulation’, Chapter 28 in this volume.

Frederick Schauer, ‘The Exceptional First Amendment’ in Michael Ignatieff (ed), American Exceptionalism and Human Rights (Princeton UP 2005) 29.

New York Times v Sullivan , 376 US 254 (1964).

Chaplinsky v New Hampshire , 315 US 568, 570 (1942).

The Supreme Court has never since upheld a conviction on the basis of the ‘fighting words’ exception that Chaplinsky apparently establishes. See Erwin Chemerinsky, The First Amendment (Wolters Kluwer 2018) 159.

Citizens United v Federal Electoral Commission , 558 US 310 (2010).

Timothy Zick ‘Parades, Picketing, and Demonstrations’, Chapter 20 in this volume, p. 369.

Cynthia Estlund ‘Freedom of Expression in the Workplace’, Chapter 22 in this volume, p. 413.

Timothy Zick ‘Parades, Picketing and Demonstrations’, Chapter 20 in this volume, p. 376.

Janus v AFSCME, Council 31 , 138 S Ct 2448, 2501 (2018) (Kagan J, dissenting).

But see also Constitution of South Africa: 4 February 1997 (‘South African Constitution’), s 8(2); Constitution of Colombia: 4 July 1991 (‘Colombian Constitution’), art 86; Constitution of Ireland: 29 December 1937 (as amended to 4 October 2013) (‘Irish Constitution’), s 40(3), and Meskell v CIE [1973] IR 121.

There is also a third position—‘indirect horizontal action’—which allows for the invocation of constitutional rights in private actions under the general law, see Stephen Gardbaum, ‘The Structure of a Free Speech Right’, Chapter 12 in this volume, p. 224.

As in Canada, see Adrienne Stone, ‘Canadian Constitutional Law of Freedom of Expression’, in Richard Albert and David R Cameron (eds), Canada in the World: Comparative Perspectives on the Canadian Constitution (CUP 2017).

See Jack Balkin, ‘Free Speech Is a Triangle’ (2012) 118 Colum L Rev 2011; see also Tim Wu, ‘Is the First Amendment Obsolete?’ (2018) 117 Mich L Rev 547. 568.

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Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI — hardly ancient history — that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution’s framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish “any false, scandalous and malicious writing” against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

From then on, the right to freedom of expression grew more secure — until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the “clear and present danger” test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES “PROTECTED SPEECH” INCLUDE?

First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government’s interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of “national security” to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the “Pentagon Papers” by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country’s involvement in Vietnam, was leaked to the press. When the Times ignored the government’s demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through “prior restraint,” block publication of any material unless it could prove that it would “surely” result in “direct, immediate, and irreparable” harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government’s claims of “national security” must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called “fighting words … which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected. This decision was based on the fact that fighting words are of “slight social value as a step to truth.”
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished — only if the offended official can prove the falsehoods were published with “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.” Other kinds of “libelous statements” are also punishable.
• Legally “obscene” material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It’s the foundation of self-fulfillment. The right to express one’s thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself — and as such, deserves society’s greatest protection.

It’s vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one’s own conclusions against opposing views. Therefore, all points of view — even those that are “bad” or socially harmful — should be represented in society’s “marketplace of ideas.”

It’s necessary to our system of self-government and gives the American people a “checking function” against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual’s freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, Anchor Press, 1995.

To order call 1-800-775-ACLU

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Why is freedom of expression important?

Freedom of speech, often called “freedom of expression,” is secured by the First Amendment. Not only was America unique in penning a written national Constitution, but also in including in it explicit protection for free speech. It raises the questions of what is “freedom of expression,” and why was it so important that the founders enshrined it in the First Amendment?

Freedom of expression is the natural right to express beliefs and ideas without interference, retaliation, compulsion, or censorship from the government. While “speech” typically refers to verbal communication, “expression” encompasses the full range of ways we can communicate ideas – speech, music, literature, architecture, fashion, comedy, cuisine, and the list goes on.

There are many reasons why free speech is important. Here are just a few.

Freedom of expression is necessary to discover truth and make social progress.

Any great and lasting advance in society – from racial equality to the possibility of self-government – depends on the discovery of truth. And free expression is how we can test and learn the truth.

In the 19 th century essay “On Liberty,” English political philosopher John Stuart Mill argues that in any argument, there are only three possible scenarios: One is either wholly wrong, partially correct, or wholly correct. Free speech helps us know or confirm the truth in every case:

• If I’m wholly wrong, I need to know that and be corrected with the truth.
• If I’m partially correct (the most common status for most human beings), I still benefit from learning where I’m wrong and being corrected.
• And even if I’m wholly correct, I benefit from free speech that challenges my views because it helps me to better understand and be able to defend my correct views.

In the long run, then, truth is always served by free speech.

Indeed, “truth is great and will prevail if left to herself,” as Declaration of Independence author Thomas Jefferson put it in the 1786 Virginia Statute for Religious Freedom.

Jefferson was so committed to this idea that free speech leads us to truth that when he founded the University of Virginia, he declared, “For here we are not afraid to follow the truth nor to tolerate any error so long as reason is left free to combat it.”

And as we learn and test ideas, we can use them for good.

“Freedom of speech has been driving progress and making people’s lives better for thousands of years,” said Casey Mattox , Americans For Prosperity (AFP) Vice President of Legal and Judicial Strategy. “Almost any social movement, invention, or innovation you can think of was dependent in some way on the ability to speak and to hear.”

Go back to America’s founding: From the protest of citizens during the Boston Tea Party to the anonymous writings in the Federalist Papers, individual expression played a central role in bringing about and shaping our nation.

“I want to be able to know what the world is really like,” Mattox added. “I want to be able to know what people think. I want to be able to know what motivates people. Because if you want to make the world better, you’ve got to understand it and people’s desires and fears so that you can try to address those concerns and help them.”

“Innovation flourishes within the dynamic arena of public discourse, where a diverse array of minds ignites curiosity and sparks scientific breakthroughs. History’s most profound innovations, like conquering the skies or venturing into space, emerged by daring to challenge conventional beliefs,” said James Czerniawski , AFP Senior Policy Analyst. “Embracing this spirit of audacity is not just a celebration of progress; it’s a testament to the boundless possibilities that arise when we boldly question the limits of what is deemed possible.”

Free expression is important for American self-governance.

Free speech is not only important in the discovery of truth and social and scientific progress. It’s also indispensable in a democratic republic like the United States – where the people themselves select their leaders and hold them accountable for the decisions and laws they make on their behalf.

In a dictatorship or even a monarchy, one might argue that free speech is less important – or even a hindrance to efficient operation of the government. But where the people themselves are the sovereign, where “we the people” are in charge, not controlled as subjects from on high, free speech ensures our government reflects our will and that we can hold them accountable if they do not. And when we disagree, we can deliberate, persuade, or find areas of common ground.

“America is unique because of the way that we propose to do self-governance,” said Mattox. “You can’t self-govern without the people being able to speak to one another and persuade one another of things. ‘We the people’ actually hold the reins of power, and we as citizens have the power to actually change the government, and therefore we have to be able to talk to and persuade one another.”

Self-governance can’t work without the ability of people to participate in civic life, hold government to account, and engage on their deeply held beliefs – without fear of intimidation or harassment from people in positions in power.

In his 1860 address “A Plea for Free Speech in Boston,” American statesman Frederick Douglass said, “No right was deemed by the fathers of the government more sacred than the right of speech. It was in their eyes, as in the eyes of all thoughtful men, the great moral renovator of society and government.”

Douglass continued, “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power. Thrones, dominions, principalities, and powers, founded in injustice and wrong, are sure to tremble, if men are allowed to reason of righteousness, temperance, and of a judgment to come in their presence.”

Because of our First Amendment and our commitment to free expression every American has the right to organize around their beliefs and advance the causes important to them.

And freedom of expression ensures every citizen has a tool to fight back against injustice or corruption. It elevates the voice of the marginalized, the vulnerable, and the oppressed. From women’s suffrage to civil rights, free expression has enabled Americans to advance our country toward equality, justice, and even greater liberty.

“Today, we continue to witness captivating instances of individuals harnessing their First Amendment rights to champion myriad causes, showcasing the power of free expression in advocating for change,” said Czerniawski. “People realize the power of their voice.”

Free speech is universal and inherent in human dignity.

Finally, the ability to think and reason with one another is part of what makes us human. When government compels, prohibits, or censors speech, it treats people as if they aren’t reasoning individuals but as cogs in a machine – as less than human.

Mattox is careful to emphasize that free expression is a natural right innate to us all as humans, not something given to us by our government.

“This idea that free speech is this 200-year-old concept is simply inaccurate,” said Mattox. “It’s actually thousands of years old , and that just proves the First Amendment didn’t grant us anything but instead protected a right that people have contended that human beings have to have as part of human dignity for thousands of years.”

No one individual can know everything or possess all truth. And each individual – regardless of our race, sex, age, religion, politics or other backgrounds or experiences – has something to contribute.

Free expression empowers us to make that contribution to society, whether big or small. Every human being is unique and has value. The protection of free expression honors that truth by ensuring that government cannot decide which classes of citizens or ideas are worthy of being heard and which are not.

Free speech is a cornerstone of a free society, and the people of the United States of America are the most free people in the world in very large part due to the First Amendment’s protection of freedom of expression.

Key to our nation’s founding principles is the belief that every man and woman holds the claim to free speech.

Freedom of expression is the best defense to prevent injustice, the best instrument for correcting injustice when it does occur, and the best tool for advancing freedom and opportunity.

Add your voice to the movement to protect the constitutional rights of all Americans.

Americans for Prosperity Foundation Calls on Supreme Court to Protect Americans’ Free Speech Rights in Online Censorship Cases

Afp applauds safeguarding charity act to secure constitutional protections for schools, churches, and charities.

DHS still won’t reveal its alleged authorities to censor ‘misinformation’

The 3 best changes Elon Musk has made to X, formerly known as Twitter

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Elon Musk may have a point in his fight against Brazil, but he's not actually helping

• The Brazilian Supreme Court issued an order to ban certain X accounts.
• Elon Musk said he'd ignore the order and demanded that Brazil uphold free-speech principles.
• A civil-liberties expert says Musk's voice isn't helping the country's debate on free speech.

Elon Musk is wading into a war with Brazil over orders from the country's supreme court to ban certain X accounts that helped spread election misinformation.

While the country deals with a debate about balancing free speech with significant threats to its democracy, Musk's outsize voice — which is emboldening an antidemocratic wing of the far-right — isn't helping, a civil-liberties expert told Business Insider.

Musk posted on Saturday that he'd oppose an order from Alexandre de Moraes, a top judge on Brazil's supreme court, to ban an unknown number of X accounts related to Brazil's far right after an official X account initially said the company would comply .

In response, de Moraes said in a court decision that Musk would be investigated for obstruction, criminal organization, and incitement and called the X chairman's weekend posts a "disinformation campaign," the Associated Press reported. He said Musk would also face a fine of about $20,000 a day for each blocked account reinstated in Brazil, the AP reported.

The judge's actions are part of a wider initiative from the country to combat hate speech and false information, and de Moraes is at the forefront of this crusade.

De Moraes began an investigation in 2019 into what he called digital militias, or groups spreading disinformation online. In 2022, he briefly banned Telegram , saying it was facilitating the spread of false information, and ordered tech companies such as Meta to remove misinformation or face suspension in the country.

De Moraes' work became more relevant after far-right rioters stormed the country's congressional building on January 8, 2023, acting on false claims made by then- President Jair Bolsonaro that the election had been stolen.

De Moraes ordered an investigation into Bolsonaro's role in the attempted coup that uncovered coordinated social-media efforts to undermine Brazil's election systems — which also happens to be a violation of X's own guidelines .

"Suspended accounts on X echoed these efforts and were related to Bolsonaro's political base," Veridiana Alimonti, the associate director of Latin American policy at the Electronic Frontier Foundation, told BI.

The Brazilian publication Estadão found a few of these accounts ordered to be blocked on X. Names on the list included election-misinformation influencers and at least one Nazi influencer .

Alimonti said Musk's defense of these accounts was "backed by the Brazilian far right" — including by Bolsonaro himself, who pushed baseless claims of widespread voter fraud in the country similar to those of former US President Donald Trump .

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Musk has previously been cozy with Bolsonaro : After Musk's tirade on Saturday, the former president posted a video of himself praising Musk when the pair met in 2022.

Musk 'undermines' a relevant debate

Alimonti said there were legitimate concerns about de Moraes' actions.

De Moraes has been given extensive discretion about which online accounts to suspend in the name of national security. There is little transparency around his decisions, and while his actions have been crucial to maintaining democratic stability, he faces criticism for an overreach of power, Alimonti told BI in an email.

The country's left argues that false information is eroding Brazilian democracy , pointing to the coup attempt as proof.

The right, including Bolsonaro, has painted De Moraes' actions as draconian.

But Alimonti said Musk's voice wasn't helping to foster nuanced debate.

"Musk's claims in defense of free speech within this dispute undermines, rather than enhances, a qualified debate over ensuring user freedom of expression online and effectively balancing rights in content moderation," Alimonti said.

Like in the US, freedom of expression is enshrined in Brazil's constitution. But the country's protection of free speech isn't absolute, giving the federal government greater discretion to ban certain types of speech — such as hate speech .

Representatives for Musk and Brazil's supreme court didn't immediately respond to a request for comment from BI.

An inconsistent defense of free speech

The decision to fight Brazil's government brazenly departs from Musk's previous stance of complying with government limits to speech. The billionaire refused to speak out against China , India, and Turkey for restrictions on X.

Notably, Musk has had business dealings in these countries.

It highlights a pattern with Musk — the right to unhindered speech becomes a concern when those in his ideological or business circles are involved.

A recent example includes X supporting the lawsuits of two X users who were fired from their jobs because of posts made on the site. One of these lawsuits included a former employee of Block, cofounded by Jack Dorsey, who said they were fired for, among other things, posting anti-trans and ableist slurs on one of their pseudonymous accounts. Musk has previously shared transphobic views on the platform.

But Musk quickly combats speech critical of him and his companies. A recent ruling against the tech billionaire by federal Judge Charles Breyer said Musk's company was using the courts to try to punish the Center for Countering Digital Hate for reporting that hate speech had gone up on X.

"If there is any question about the 'punishing' part, X Corp. filed a similar suit, not before this Court, in November of 2023 against Media Matters , another non-profit media watchdog, for 'reporting on ads from major brands appearing next to neo-Nazi content,'" Breyer wrote in a footnote in the lawsuit.

And it's this type of speech that Musk is going to bat for in Brazil — speech that can have serious implications for the country.

Nina Santos, a digital-democracy researcher at the Brazilian National Institute of Science & Technology, told Wired that the far right was "trying to use Brazil as a laboratory on how to interfere in local politics and local businesses," adding: "An opinion from an American billionaire should not count more than a democratic institution."

Watch: OPINION: Media activist shares how Musk could change Twitter

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Gender-critical activists and pro-transgender groups clash in Edinburgh

Let Women Speak leader says rally aimed to test Scotland’s new hate crime legislation, Telegraph reports

Gender-critical activists and counter-protesters clashed in Edinburgh in a dispute over transgender rights.

Let Women Speak (LWS), an organisation described by supporters as a “gender-critical feminist” campaign, led a rally outside the Royal Scottish Academy in the Scottish capital on Saturday.

The rally, which began at 1pm, was led by Kellie-Jay Keen-Minshull, sometimes known as Posie Parker.

Keen-Minshull said her purpose was to “test the law” on the march to see how the police would handle gender-critical chants in light of Scotland’s new hate crime legislation, the Telegraph reported.

The group was met by opposition from various pro-transgender groups, including Cabaret Against the Hate Speech (CAHS), who led the counter-protest.

Both events remained peaceful, with no arrests made, according to Police Scotland.

During a speech at the rally, Keen-Minshull described transitioning children as “profound abuse” and called Scotland’s hate crime laws “preposterous”.

Keen-Minshull is not the first to challenge Scotland’s new law, which aims to protect people from a rising tide of hatred, according to Humza Yousaf , Scotland’s first minister.

Earlier this week, JK Rowling challenged police to arrest her in a series of posts on X in which she described well-known trans women activists as “men, every last one of them”.

Yousaf said the legislation, which is intended to consolidate existing hate crime laws, “absolutely protects people in their freedom of expression”.

Police Scotland confirmed they had received complaints about the social media post but added: “The comments are not assessed to be criminal and no further action will be taken.”

Counter-protesters on Saturday held placards, banners and flags, denouncing LWS’s standpoint and chanting pro-transgender messages.

A CAHS spokesperson said it “stands in solidarity with the trans community across the globe, who are facing unprecedented levels of violence, hatred and harassment”.

The spokesperson added: “Our community showed up. We laughed, we sang, we danced, we shared our stories and a message of joy and resistance to hate.

“None of us [are] free until all of us are free. LGB with the T, now and for ever.”

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