freedom of speech vs censorship

Carnegie Library of Pittsburgh

Free to the people.

The First Amendment, Censorship, and Private Companies: What Does “Free Speech” Really Mean?

By Julie Horowitz

Updated August 2023:

The First Amendment Defined

The First Amendment to the U.S. Constitution protects what are commonly known as The Five Freedoms: freedom of religion, freedom of press, freedom of speech, freedom of assembly, and freedom of petition. The amendment is part of ten amendments to the Constitution known as the Bill of Rights, which was adopted in 1791. The First Amendment Reads:

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

This amendment gives Americans the right to express themselves verbally and through publication without government interference. It also prevents the government from establishing a “state” religion, and from favoring one religion over others. And finally, it protects Americans’ rights to gather in groups for social, economic, political, or religious purposes; sign petitions; and even file a lawsuit against the government. (Source:  History.com )

Freedom of the Press and Freedom of Speech

Freedom of the press and freedom of speech are closely related, and are often the subject of court cases and popular news. Understanding how and when these rights are protected by the First Amendment can help us better understand current events and court decisions.

While the First Amendment acknowledges and protects these rights, there are limitations to how the amendment can be invoked. For instance: people are free to express themselves through publication; however, false or defamatory statements (called libel) are not protected under the First Amendment.

What is Defamation? Defamation occurs if you make a false statement of fact about someone else that harms that person’s reputation. Such speech is not protected by the First Amendment and could result in criminal and civil liability. Defamation is limited in multiple respects though.

If you make a false statement of fact about a public official or a public figure, more First Amendment protection applies to ensure that people are not afraid to talk about public issues. According to  New York Times v. Sullivan (1964) , defamation against public officials or public figures also requires that the party making the statement used “actual malice,” meaning the false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Parodies and satire  are protected by the First Amendment (and are not defamatory). Parodies and satire are meant to humorously poke fun at someone or something, not report believable facts.

(Source: University of Wisconsin-Milwaukee )

The First Amendment also specifically refers to the interference of government in these rights. This ensures that Americans are free to critique the government, but it does not give Americans blanket immunity to say whatever they want, wherever they want, without consequences. Lata Nott, Executive Director of the First Amendment Center, explains:

The First Amendment only protects your speech from government censorship. It applies to federal, state, and local government actors. This is a broad category that includes not only lawmakers and elected officials, but also public schools and universities, courts, and police officers.  It does not include private citizens, businesses, and organizations. This means that: 

• A private school can suspend students for criticizing a school policy;
• A private business can fire an employee for expressing political views on the job; and
• A private media company can refuse to publish or broadcast opinions it disagrees with. 

(Source: Freedom Forum Institute )

Supreme Court Cases

The U.S. Supreme Court has often been called upon to determine what types of speech are protected under the First Amendment. Since the adoption of the Bill of Rights, hundreds of cases have been seen by the Supreme Court, setting precedence for future cases and refining the definition of speech protected by the First Amendment.

Cox v. New Hampshire Protests and freedom to assemble

Elonis v. U.S. Facebook and free speech

Engel v. Vitale Prayer in schools and freedom of religion

Hazelwood v. Kuhlmeier Student newspapers and free speech

Morse v. Frederick School-sponsored events and free speech

Snyder v. Phelps Public concerns, private matters, and free speech

Texas v. Johnson Flag burning and free speech

Tinker v. Des Moines Free speech in schools

U.S. v. Alvarez Lies and free speech

(Source: UScourts.gov )

So what types of speech are protected by the First Amendment? Let’s turn to some experts to better understand:

• Is Your Speech Protected by the First Amendment? by Lata Nott, Executive Director, First Amendment Center (Source: Freedom Forum Institute )
• What does Free Speech Mean? (Source: United States Courts )
• Freedom of Speech and the Press by Geoffrey R. Stone and Eugene Volokh (Source: Interactive Constitution via the National Constitution Center )

Censorship Defined

Censorship is the suppression or prohibition of words, images, or ideas that are considered offensive, obscene, politically unacceptable, or a threat to security (Sources: Lexico and ACLU ). The First Amendment Encyclopedia notes that “censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs, and internet sites” (Source: The First Amendment Encyclopedia ).

Censorship by the government is unconstitutional. When the government engages in censorship, it goes against the First Amendment rights discussed above. However, there are still examples of government censorship in our history (see the 1873 Comstock Law and the 1996 Communications Decency Act ), and the Supreme Court is often called upon to ensure that First Amendment rights are being protected.

Private individuals and groups still often engage in censorship. As long as government entities are not involved, this type of censorship technically presents no First Amendment implications. Many of us are familiar with the censoring of popular music, movies, and art to exclude words or images that are considered “vulgar” or “obscene.” While many of these forms of censorship are technically legal, private groups like the National Coalition Against Censorship (NCAC) and the American Civil Liberties Union (ACLU) work to make sure that the right to free speech is honored.

To learn more about the history of censorship in the United States, and across the world, consider the sources below.

• Censorship in the United States by Tom Head, Civil Liberties Expert (Source: ThoughtCo. )
• Censorship by George Anastaplo (Source: Britannica )
• A Brief History of Film Censorship (Source: NCAC.org )
• Music Censorship in America (Source: NCAC.org )
• Book Banning by Susan L. Webb (Source: The First Amendment Encyclopedia )

Free Speech Online and on Social Media (Section 230)

The widespread use of the internet, and particularly social media platforms, has presented new challenges in defining what types speech are protected by the First Amendment. Social Media platforms are private companies, and we learned above that private companies are legally able to establish regulations and guidelines within their communities–including censorship of content or banning of members.

Section 230 of the 1996 Communications Decency Act , states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  That legal phrase shields companies that can host trillions of messages from being sued into oblivion by anyone who feels wronged by something someone else has posted — whether their complaint is legitimate or not.

Politicians on both sides of the aisle have argued, for different reasons, that Twitter, Facebook and other social media platforms have abused that protection and should lose their immunity — or at least have to earn it by satisfying requirements set by the government.

Section 230 also allows social platforms to moderate their services by removing posts that, for instance, are obscene or violate the services’ own standards, so long as they are acting in “good faith.”  (Source: The Free Speech Center at Middle Tennessee State University )

But what happens when politicians use these platforms to communicate with the people they lead? Is it legal for a social media platform to ban a person from using their service? If a politician bans or blocks members from interacting with their content on a social media platform, is it considered a First Amendment violation?

Below are some additional sources discussing how the First Amendment applies to online interactions and social media:

• Video Playlist: CivicCLP – First Amendment
• Podcast: What Does Free Speech Mean Online? Kate Ruane, senior legislative counsel for First Amendment issues at the ACLU (Source: At Liberty via ACLU.org )
• Everything You Need to Know About Section 230 by Casey Newton (Source: The Verge )
• Social Media and Government Use of Social Media by David L. Hudson Jr. (Source: The First Amendment Encyclopedia )
• Censorship, Free Speech & Facebook: Applying the First Amendment to Social Media Platforms via the Public Function Exception (Source: Washington Journal of Law, Technology and Arts )

• Brown v. Board of Ed (1954) - a landmark case in which the justices ruled unanimously that racial segregation of children in public schools was unconstitutional.
• Loving v. Virginia (1967) – a landmark case in which justices ruled unanimously to strike down state laws banning interracial marriage in the United States.
• Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) – Justices ruled (5–4) that suspicionless drug testing of students participating in competitive extracurricular activities did not violate the Fourth Amendment, which guarantees protection from unreasonable searches and seizures.
• Citizens United v. Federal Election Commission (2010) – Justices ruled (5–4) that laws that prevented corporations and unions from using their general treasury funds for independent “electioneering communications” (political advertising) violated the First Amendment’s guarantee of freedom of speech.
• Obergefell v. Hodges (2015) – Justices ruled (5-4) that state bans on same-sex marriage and on recognizing same-sex marriages duly performed in other jurisdictions are unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.
• Our Lady of Guadalupe School v. Morrissey-Berru (2020) – Justices ruled (7-2) that federal employment discrimination laws do not apply to teachers at church-run schools.
• Supreme Court Justices – Interactive Timeline
• Rule of Law (Protection of Minorities)

Sign Up for the CivicCLP Newsletter:

What is civic engagement, source: presidential precinct, first amendment resources:.

• First Amendment Center - Freedom Forum Institute
• What Does Free Speech Mean?  (U.S. Courts)
• Bill of Rights Institute
• The First Amendment for the Twenty-First Century  (The Pittsburgh Foundation)

Voter Registration Resources and Voting Information:

• Pennsylvania Voter Registration Form
• Election Division of Allegheny County
• WESA Voting Guide
• Incarcerated Citizens: Know Your Rights from LWVPGH
• Returning Citizens and Citizens with a Criminal Record from LWVPGH

Civic Education & Engagement Local Partners:

• League of Women Voters of Greater Pittsburgh
• Allegheny County Law Library
• Pennsylvanians for Modern Courts
• JCC's Center for Loving Kindness and Civic Engagement
• VEEEM Pittsburgh

Citizenship and Volunteering Initiatives:

• CLP Welcome Centers
• Pennsylvania Immigration and Citizenship Coalition
• VolunteerMatch (Pittsburgh Organizations)

National  Resources  

  local  resources  .

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15.4 Censorship and Freedom of Speech

Learning objectives.

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hay’s Code affected 20th-century American mass media.

Figure 15.3

Attempts to censor material, such as banning books, typically attract a great deal of controversy and debate.

Timberland Regional Library – Banned Books Display At The Lacey Library – CC BY-NC-ND 2.0.

To fully understand the issues of censorship and freedom of speech and how they apply to modern media, we must first explore the terms themselves. Censorship is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press (Case Summaries).” Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (Federal Communications Commission). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (Federal Communications Commission).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one.

There is a formalized process for deciding what material falls into which category. First, the FCC relies on television audiences to alert the agency of potentially controversial material that may require classification. The commission asks the public to file a complaint via letter, e-mail, fax, telephone, or the agency’s website, including the station, the community, and the date and time of the broadcast. The complaint should “contain enough detail about the material broadcast that the FCC can understand the exact words and language used (Federal Communications Commission).” Citizens are also allowed to submit tapes or transcripts of the aired material. Upon receiving a complaint, the FCC logs it in a database, which a staff member then accesses to perform an initial review. If necessary, the agency may contact either the station licensee or the individual who filed the complaint for further information.

Once the FCC has conducted a thorough investigation, it determines a final classification for the material. In the case of profane or indecent material, the agency may take further actions, including possibly fining the network or station (Federal Communications Commission). If the material is classified as obscene, the FCC will instead refer the matter to the U.S. Department of Justice, which has the authority to criminally prosecute the media outlet. If convicted in court, violators can be subject to criminal fines and/or imprisonment (Federal Communications Commission).

Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Table 15.1 FCC Indecency Complaints and NALs: 2000–2005

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema (Film Reference).” The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as Intolerance (1916) and The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity (Film Reference).”

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. As you read in Chapter 8 “Movies” , this changed during the 1930s with the implementation of the Hays Code. Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions (Film Reference).” Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship. The code displayed the motion picture industry’s commitment to the public, stating:

Motion picture producers recognize the high trust and confidence which have been placed in them by the people of the world and which have made motion pictures a universal form of entertainment…. Hence, though regarding motion pictures primarily as entertainment without any explicit purposes of teaching or propaganda, they know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking (Arts Reformation).

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Arts Reformation). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing (Arts Reformation).”

Figure 15.4

As the chairman of the Motion Picture Producers and Distributors Association, Will Hays oversaw the creation of the industry’s self-censoring Hays Code.

Wikimedia Commons – public domain.

As television grew in popularity during the mid-1900s, the strict code placed on the film industry spread to other forms of visual media. Many early sitcoms, for example, showed married couples sleeping in separate twin beds to avoid suggesting sexual relations.

By the end of the 1940s, the MPPDA had begun to relax the rigid regulations of the Hays Code. Propelled by the changing moral standards of the 1950s and 1960s, this led to a gradual reintroduction of violence and sex into mass media.

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films Indiana Jones and the Temple of Doom and Gremlins both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include TV-Y (all children), TV-Y7 (children ages 7 and up), TV-Y7-FV (older children—fantasy violence), TV-G (general audience), TV-PG (parental guidance suggested), TV-14 (parents strongly cautioned), and TV-MA (mature audiences only).

Table 15.2 Television Ratings System

Source: http://www.tvguidelines.org/ratings.htm

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings include EC (early childhood), E (everyone), E 10+ (ages 10 and older), T (teen), M (mature), and AO (adults only).

Table 15.3 Video Game Ratings System

Source: http://www.esrb.org/ratings/ratings_guide.jsp

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world, Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Awareness). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds (Media Awareness).” Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Takeaways

• The U.S. Government devised the three-prong test to determine if material can be considered “obscene.” The FCC applies these guidelines to determine whether broadcast content can be classified as profane, indecent, or obscene.
• Established during the 1930s, the Hays Code placed strict regulations on film, requiring that filmmakers avoid portraying violence and sex in films.
• After the decline of the Hays Code during the 1960s, the MPAA introduced a self-policed film ratings system. This system later inspired similar ratings for television and video game content.

Look over the MPAA’s explanation of each film rating online at http://www.mpaa.org/ratings/what-each-rating-means . View a film with these requirements in mind and think about how the rating was selected. Then answer the following short-answer questions. Each response should be a minimum of one paragraph.

• Would this material be considered “obscene” under the Hays Code criteria? Would it be considered obscene under the FCC’s three-prong test? Explain why or why not. How would the film be different if it were released in accordance to the guidelines of the Hays Code?
• Do you agree with the rating your chosen film was given? Why or why not?

Arts Reformation, “The Motion Picture Production Code of 1930 (Hays Code),” ArtsReformation, http://www.artsreformation.com/a001/hays-code.html .

Case Summaries, “First Amendment—Religion and Expression,” http://caselaw.lp.findlaw.com/data/constitution/amendment01/ .

Federal Communications Commission, “Obscenity, Indecency & Profanity: Frequently Asked Questions,” http://www.fcc.gov/eb/oip/FAQ.html .

Film Reference, “Violence,” Film Reference, http://www.filmreference.com/encyclopedia/Romantic-Comedy-Yugoslavia/Violence-BEGINNINGS.html .

Media Awareness, Media Issues, “Sex and Relationships in the Media,” http://www.media-awareness.ca/english/issues/stereotyping/women_and_girls/women_sex.cfm .

Media Awareness, Media Issues, “Violence in Media Entertainment,” http://www.media-awareness.ca/english/issues/violence/violence_entertainment.cfm .

Understanding Media and Culture Copyright © 2016 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

First Amendment and Censorship

First Amendment Resources | Statements & Core Documents | Publications & Guidelines

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment of the U.S. Constitution passed by Congress September 25, 1789. Ratified December 15, 1791.

One of the ten amendments of the Bill of Rights, the First Amendment gives everyone residing in the United States the right to hear all sides of every issue and to make their own judgments about those issues without government interference or limitations. The First Amendment allows individuals to speak, publish, read and view what they wish, worship (or not worship) as they wish, associate with whomever they choose, and gather together to ask the government to make changes in the law or to correct the wrongs in society.

The right to speak and the right to publish under the First Amendment has been interpreted widely to protect individuals and society from government attempts to suppress ideas and information, and to forbid government censorship of books, magazines, and newspapers as well as art, film, music and materials on the internet. The Supreme Court and other courts have held conclusively that there is a First Amendment right to receive information as a corollary to the right to speak. Justice William Brennan elaborated on this point in 1965:

“The protection of the Bill of Rights goes beyond the specific guarantees to protect from Congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.I think the right to receive publications is such a fundamental right.The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General , 381 U.S. 301 (1965).

The Supreme Court reaffirmed that the right to receive information is a fundamental right protected under the U.S. Constitution when it considered whether a local school board violated the Constitution by removing books from a school library. In that decision, the Supreme Court held that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Board of Education v. Pico , 457 U.S. 853 (1982)

Public schools and public libraries, as public institutions, have been the setting for legal battles about student access to books, the removal or retention of “offensive” material, regulation of patron behavior, and limitations on public access to the internet. Restrictions and censorship of materials in public institutions are most commonly prompted by public complaints about those materials and implemented by government officials mindful of the importance some of their constituents may place on religious values, moral sensibilities, and the desire to protect children from materials they deem to be offensive or inappropriate. Directly or indirectly, ordinary individuals are the driving force behind the challenges to the freedom to access information and ideas in the library.

The First Amendment prevents public institutions from compromising individuals' First Amendment freedoms by establishing a framework that defines critical rights and responsibilities regarding free expression and the freedom of belief. The First Amendment protects the right to exercise those freedoms, and it advocates respect for the right of others to do the same. Rather than engaging in censorship and repression to advance one's values and beliefs, Supreme Court Justice Louis Brandeis counsels persons living in the United States to resolve their differences in values and belief by resort to "more speech, not enforced silence."

By virtue of the Fourteenth Amendment, the First Amendment's constitutional right of free speech and intellectual freedom also applies to state and local governments. Government agencies and government officials are forbidden from regulating or restricting speech or other expression based on its content or viewpoint. Criticism of the government, political dissatisfaction, and advocacy of unpopular ideas that people may find distasteful or against public policy are nearly always protected by the First Amendment. Only that expression that is shown to belong to a few narrow categories of speech is not protected by the First Amendment. The categories of unprotected speech include obscenity, child pornography, defamatory speech, false advertising, true threats, and fighting words. Deciding what is and is not protected speech is reserved to courts of law.

The First Amendment only prevents government restrictions on speech. It does not prevent restrictions on speech imposed by private individuals or businesses. Facebook and other social media can regulate or restrict speech hosted on their platforms because they are private entities.

First Amendment Resources

Clauses of the First Amendment | The National Constitution Center

First Amendment FAQ | Freedom Forum

Freedom of Religion, Speech, Press, Assembly, and Petition: Common Interpretations and Matters for Debate | National Constitution Center

First Amendment - Religion and Expression | FindLaw

What is Censorship?

Censorship is the suppression of ideas and information that some individuals, groups, or government officials find objectionable or dangerous. Would-be censors try to use the power of the state to impose their view of what is truthful and appropriate, or offensive and objectionable, on everyone else. Censors pressure public institutions, like libraries, to suppress and remove information they judge inappropriate or dangerous from public access, so that no one else has the chance to read or view the material and make up their own minds about it. The censor wants to prejudge materials for everyone. It is no more complicated than someone saying, “Don’t let anyone read this book, or buy that magazine, or view that film, because I object to it!”

“Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment.” — Article 3, Library Bill of Rights

ALA Statements and Policies on Censorship

Challenged Resources: An Interpretation of the Library Bill of Rights (2019) A challenge is an attempt to remove or restrict materials, based upon the objections of a person or group. A banning is the removal of those materials. Challenges do not simply involve a person expressing a point of view; rather, they are an attempt to remove material from the curriculum or library, thereby restricting the access of others. ALA declares as a matter of firm principle that it is the responsibility of every library to have a clearly defined written policy for collection development that includes a procedure for review of challenged resources.

Labeling Systems: An Interpretation of the Library Bill of Rights (2015) The American Library Association affirms the rights of individuals to form their own opinions about resources they choose to read, view, listen to, or otherwise access. Libraries do not advocate the ideas found in their collections or in resources accessible through the library. The presence of books and other resources in a library does not indicate endorsement of their contents by the library. Likewise, providing access to digital information does not indicate endorsement or approval of that information by the library. Labeling systems present distinct challenges to these intellectual freedom principles.

Rating Systems: An Interpretation of the Library Bill of Rights (2019) Libraries, no matter their size, contain an enormous wealth of viewpoints and are responsible for making those viewpoints available to all. However, libraries do not advocate or endorse the content found in their collections or in resources made accessible through the library. Rating systems appearing in library public access catalogs or resource discovery tools present distinct challenges to these intellectual freedom principles. Q&A on Labeling and Rating Systems

Expurgation of Library Materials: An Interpretation of the Library Bill of Rights (2014) Expurgating library materials is a violation of the Library Bill of Rights. Expurgation as defined by this interpretation includes any deletion, excision, alteration, editing, or obliteration of any part(s) of books or other library resources by the library, its agent, or its parent institution (if any).

Restricted Access to Library Materials: An Interpretation of the Library Bill of Rights (2014) Libraries are a traditional forum for the open exchange of information. Attempts to restrict access to library materials violate the basic tenets of the Library Bill of Rights.

Complete list of Library Bill of Rights Interpretations

Core Documents

Library Bill of Rights (1939) Adopted by ALA Council, the Articles of the Library Bill of Rights are unambiguous statements of basic principles that should govern the service of all libraries. ( printable pamphlets )

Freedom to Read Statement (1953) A collaborative statement by literary, publishing, and censorship organizations declaring the importance of our constitutionally protected right to access information and affirming the need for our professions to oppose censorship.

Libraries: An American Value (1999) Adopted by ALA Council, this brief statement pronounces the distinguished place libraries hold in our society and their core tenets of access to materials and diversity of ideas.

Guidelines for Library Policies (2019) Guidelines for librarians, governing authorities, and other library staff and library users on how constitutional principles apply to libraries in the United States.

Intellectual Freedom and Censorship Q&A (2007)

Social Media Guidelines for Public and Academic Libraries (2018)

These guidelines provide a policy and implementation framework for public and academic libraries engaging in the use of social media.

Publications

Intellectual Freedom Manual (2021) Edited by Martin Garnar and Trina Magi with ALA’s Office for Intellectual Freedom The 10th edition manual is an indispensable resource for day-to-day guidance on maintaining free and equal access to information for all people

Journal of Intellectual Freedom and Privacy (2016 - present) Edited by Shannon Oltmann with ALA's Office for Intellectual Freedom Published quarterly, JIFP offers articles related to intellectual freedom and privacy, both in libraries and in the wider world.

True Stories of Censorship Battles in America's Libraries (2012) By Valerie Nye and Kathy Barco This book is a collection of accounts from librarians who have dealt with censorship in some form. Divided into seven parts, the book covers intralibrary censorship, child-oriented protectionism, the importance of building strong policies, experiences working with sensitive materials, public debates and controversies, criminal patrons, and library displays.

Beyond Banned Books: Defending Intellectual Freedom throughout Your Library (2019) By Kristin Pekoll with ALA’s Office for Intellectual Freedom A level-headed guide that uses specific case studies to offer practical guidance on safeguarding intellectual freedom related to library displays, programming, and other librarian-created content.

Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights (2015) By Catherine J. Ross Lessons in Censorship highlights the troubling and growing tendency of schools to clamp down on off-campus speech such as texting and sexting and reveals how well-intentioned measures to counter verbal bullying and hate speech may impinge on free speech. Throughout, Ross proposes ways to protect free expression without disrupting education.

Assistance and Consultation

The staff of the Office for Intellectual Freedom is available to answer questions or provide assistance to librarians, trustees, educators, and the public about the First Amendment and censorship. Areas of assistance include policy development, minors’ rights, and professional ethics. Inquiries can be directed via email to [email protected] or via phone at (312) 280-4226.

Updated October 2021

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• Introduction

The status of "individuality”

Requirements of self-government.

• “Freedom of expression”
• Ancient Greece and Rome
• Ancient Israel and early Christianity
• Ancient China
• Medieval Christendom
• The 17th and 18th centuries
• The system in the former Soviet Union
• Censorship under a military government
• Freedom of the press
• Freedom and truth
• Character and freedom

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• University of Washington Pressbooks - Media and Society: Critical Approaches - Censorship and Freedom of Speech
• Free Speech Center at Middle Tennessee State University - Censorship
• The Canadian Encyclopedia - Censorship
• Oklahoma State University - School of Media and Strategic Communications - Defining Censorship
• Humanities LibreTexts - Censorship
• Frontiers - Racism and censorship in the editorial and peer review process
• Cato Institute - Shining a Light on Censorship: How Transparency Can Curtail Government Social Media Censorship and More
• American Library Association - First Amendment and Censorship
• censorship - Children's Encyclopedia (Ages 8-11)
• censorship - Student Encyclopedia (Ages 11 and up)
• Table Of Contents

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censorship , the changing or the suppression or prohibition of speech or writing that is deemed subversive of the common good . It occurs in all manifestations of authority to some degree, but in modern times it has been of special importance in its relation to government and the rule of law .

Concerns relevant to censorship

Censorship, as a term in English, goes back to the office of censor established in Rome in 443 bce . That officer, who conducted the census, regulated the morals of the citizens counted and classified. But, however honourable the origins of its name, censorship itself is today generally regarded as a relic of an unenlightened and much more oppressive age.

Illustrative of this change in opinion is how a community responds to such a sentiment as that with which Protagoras (c. 490–c. 420 bce ) opened his work Concerning the Gods :

About the gods I am not able to know either that they are, or that they are not, or what they are like in shape, the things preventing knowledge being many, such as the obscurity of the subject and that the life of man is short.

This public admission of agnosticism scandalized Protagoras’s fellow Greeks. Such statements would no doubt have been received with hostility, and probably with social if not even criminal sanctions, throughout the ancient world. In most places in the modern world, on the other hand, such a statement could be made without the prospect of having to endure a pained and painful community response. This change reflects, among other things, a profound shift in opinion as to what is and is not a legitimate concern of government.

Whereas it could once be maintained that the law forbids whatever it does not permit, it is now generally accepted—at least wherever Western liberalism is in the ascendancy—that one may do whatever is not forbidden by law. Furthermore, it is now believed that what may be properly forbidden by law is quite limited. Much is made of permitting people to do with their lives (including their opinions) as they please, so long as they do no immediate and evident (usually physical) harm to others. Thus, Leo Strauss has observed, “The quarrel between the Ancients and the Moderns concerns eventually, and perhaps even from the beginning, the status of ‘individuality.’ ”

All this is to say that individualism is made much of in modernity. The status, then, of censorship very much depends on the standing of government itself and of legitimate authority, revealing still another aspect of the complicated relation between “the individual and the state.”

One critical source of the contemporary repudiation of censorship in the West depends on something that may be distinctive to modernity, an emphasis upon the dignity of the individual. This respect for individuality has its roots both in Christian doctrines and in the (not unrelated) sovereignty of the self reflected in state-of-nature theories about the foundations of social organization. Vital to this approach is the general opinion about the nature and sanctity of the human soul . This general opinion provides the foundation of a predominantly new, or modern, argument against censorship—against anything, in fact, that interferes with self-development, and especially such self-development (or, better still, “self-fulfillment”) as a person happens to want and to choose for himself. This can be put in terms of liberty—the liberty to become and to do what one pleases.

The old, or traditional, argument against censorship was much less individualistic and much more political in its orientation, making more of another sense of liberty. According to that sense, if a people is to be self-governing, it must have access to all information and arguments that may be relevant to its ability to discuss public affairs fully and to assess in a competent manner the conduct of the officials it chooses. Thus, “ freedom of speech ,” which is constitutionally guaranteed to the people of the United States , first comes to view in Anglo-American legal history as a guarantee for the members of the British Parliament assembled to discuss the affairs of the kingdom.

In the circumstances of a people actually governing itself, it is obvious that there is no substitute for freedom of speech and of the press , particularly as that freedom permits an informed access to information and opinions about political matters. Even the more repressive regimes today recognize this underlying principle, in that their ruling bodies try to make certain that they themselves become and remain informed about what is “really” going on in their countries and abroad, however repressive they may be in not permitting their own people to learn about and openly to discuss public affairs. Whether anyone who thus rules unjustly, or otherwise improperly, can be regarded as truly understanding and hence truly controlling his situation is a question not limited to these circumstances.

“ Freedom of expression ”

The shift from the more political to the more individualistic view of liberty may be seen in how the constitutional guarantees with respect to speech and the press are typically spoken of in the United States. Restraints upon speaking and publishing , and indeed upon action generally, are fewer now than at most times in the history of the country. This absence of restraints is reflected as well in the very terms in which these rights and privileges are described. What would once have been referred to as “freedom of speech and of the press” (drawing upon the language of the First Amendment to the Constitution of the United States ) is now often referred to as “freedom of expression.”

To make much of freedom of expression is to encourage a liberation of the self from the constraints of the community. It may even be to assume that the self has, intrinsic to it or somehow available to it independent of any social guidance, intimations of what it is and what it wants. Thus, liberation may be seen in the desire of most people to be free to pursue their own goals and life plans—which may involve a reliance upon standards and objectives that are solely their own. It is tempting, in such circumstances, to adopt a radical subjectivism that tends to result in a thoroughgoing relativism with respect to moral and political judgments. One consequence of this approach is to identify an ever-expanding array of forms and media of expression that are entitled to immunity from government regulation—including not only broadcast and print media ( books and newspapers ) but also text messaging and Internet media such as blogs , social networking sites, and e-commerce sites.

On the other hand, if the emphasis is placed upon the more traditional language, “freedom of speech and of the press,” the requirements and prerogatives of a self-governing people are apt to be made more of. This means, among other things, that a people must be prepared and equipped to make effective use of its considerable political power. (Even those rulers who act without the authority of the people must take care to shape their people in accordance with the needs and circumstances of their regime. This kind of effort need not be altogether selfish on the part of such rulers, since all regimes do have an interest in law and order, in common decency, and in a routine reliability or loyalty.) It should be evident that a people entrusted with the power of self-government must be able to exercise a disciplined judgment: not everything goes, and there are better and worse things awaiting the community and its citizens.

What is particularly difficult to argue for, and to maintain, is an arrangement that, while it leaves a people clearly free politically to discuss fully all matters of public interest with a view toward governing itself, routinely prepares that same people for an effective exercise of its considerable freedom. In such circumstances, there are some who would take the case for, and the rhetoric of, liberty one step farther, insisting that no one should try to tell anyone else what kind of person he should be. There are others, however, who maintain that a person is truly free only if he knows what he is doing and chooses to do what is right. Anyone else, in their view, is a prisoner of illusions and appetites, however much he may believe that he is freely expressing himself.

There are, then, two related sets of concerns evident in any consideration of the forms and uses of censorship. One set of concerns has to do with the everyday governance of the community; the other, with the permanent shaping of the character of the people. The former is more political in its methods, and the latter is more educational.

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Home » Articles » Topic » Issues » Issues Related to Speech, Press, Assembly, or Petition » Censorship

Written by Elizabeth R. Purdy, published on August 8, 2023 , last updated on May 6, 2024

The First Amendment protects American people from government censorship. But the First Amendment's protections are not absolute, leading to Supreme Court cases involving the question of what is protected speech and what is not. On the issue of press freedoms, the Court has been reluctant to censor publication -- even of previously classified material. In the landmark case New York Times v. United States, the Court overturned a court order stopping the newspaper from continuing to print excerpts from the "Pentagon Papers", saying such prior restraint was unconstitutional. In this June 30, 1971 file picture, workers in the New York Times composing room in New York look at a proof sheet of a page containing the secret Pentagon report on Vietnam. (AP Photo/Marty Lederhandler, reprinted with permission from The Associated Press.)

Censorship occurs when individuals or groups try to prevent others from saying, printing, or depicting words and images.

Censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs, and Internet sites. When the government engages in censorship, First Amendment freedoms are implicated.

Private actors — for example, corporations that own radio stations — also can engage in forms of censorship, but this presents no First Amendment implications as no governmental, or state, action is involved.

Various groups have banned or attempted to  ban books  since the invention of the printing press. Censored or challenged works include the Bible, The American Heritage Dictionary, The Autobiography of Benjamin Franklin, Bury My Heart at Wounded Knee, To Kill A Mockingbird, and the works of children’s authors J. K. Rowling and Judy Blume.

The First Amendment guarantees freedom of speech and press, integral elements of democracy. Since Gitlow v. New York (1925), the Supreme Court has applied the First Amendment freedoms of speech and press to the states through the due process clause of the Fourteenth Amendment.

The Supreme Court ruled in Hazelwood School District v. Kuhlmeier (1988) that school officials have broad power of censorship over student newspapers. In this photo, Tammy Hawkins, editor of the Hazelwood East High School newspaper, Spectrum holds a copy of the paper, Jan. 14, 1988. (AP Photo/James A. Finley, used with permission from the Associated Press)

Not all speech is protected by the First Amendment

Freedom of speech and press are not, however, absolute. Over time, the Supreme Court has established guidelines, or tests, for defining what constitutes protected and unprotected speech. Among them are:

• the  bad tendency test , established in  Abrams v. United States  (1919),
• the  clear and present danger test  from  Schenck v. United States  (1919),
• the  preferred freedoms doctrine  of  Jones v. City of Opelika  (1943), and
• the  strict scrutiny , or  compelling state interest , test set out in Korematsu v. United States (1944).

Justice Oliver Wendell Holmes Jr.  offered the classic example of the line between protected and unprotected speech in Schenck when he observed that shouting “Fire!” in a theater where there is none is not protected speech. Categories of unprotected speech also include:

• libel and slander ,
• “ fighting words ,”
• obscenity , and

Libel and slander when it comes to public officials

Determining when defamatory words may be censored has proved to be difficult for the Court, which has allowed greater freedom in remarks made about public figures than those concerning private individuals.

In  New York Times Co. v. Sullivan  (1964), the Court held that words can be libelous (written) or slanderous (spoken) in the case of public officials only if they involve  actual malice  or publication with knowledge of falsehood or reckless disregard for the truth. Lampooning has generally been protected by the Court.

In  Hustler Magazine v. Falwell  (1988), for example, the Court held that the magazine had not slandered Rev. Jerry Falwell by publishing an outrageous “advertisement” containing a caricature of him because it was presented as parody rather than truth.

On the issue of press freedoms, the Court has been reluctant to censor publication of even previously classified materials, as in  New York Times v. United States (1971) — the  Pentagon Papers  case — unless the government can provide an overwhelming reason for such prior restraint.

The Court has accepted some censorship of the press when it interferes with the right to a fair trial, as exhibited in  Estes v. Texas  (1965) and  Sheppard v. Maxwell  (1966), but the Court has been reluctant to uphold  gag orders , as in the case of  Nebraska Press Association v. Stuart  (1976).

In general, rap and hard-core rock-n-roll have faced more censorship than other types of music. In this photo, rap artists DJ Jazzy Jeff (Jeff Townes), left, and The Fresh Prince (Will Smith) are seen backstage at the American Music Awards ceremony in Los Angeles, Calif., Monday, January 31, 1989, after winning in the category Favorite Rap Artist and Favorite Rap Album. (AP Photo/Lennox McLendon, used with permission from the Associated Press)

When words incite “breach of peace”

In  Chaplinsky v. New Hampshire  (1942), the Supreme Court defined “ fighting words ” as those that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Racial epithets and ethnic derisions have traditionally been unprotected under the umbrella of “fighting words.”

Since the backlash against so-called political correctness, however, liberals and conservatives have fought over what derogatory words may be censored and which are protected by the First Amendment.

Determining whether something is obscene

In its early history, the Supreme Court left it to the states to determine whether materials were obscene.

Acting on its decision in  Gitlow v. New York (1925)  to apply the First Amendment to limit state action, the Warren Court subsequently began dealing with these issues in the 1950s on a case-by-case basis and spent hours examining material to determine obscenity.

In  Miller v. California  (1973), the Burger Court finally adopted a test that elaborated on the standards established in  Roth v. United States (1957) . Miller defines obscenity by outlining three conditions for jurors to consider:

• “(a) whether the ‘average person, applying contemporary community standards,’ would find that the work taken as a whole appeals to the prurient interest;
• (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by applicable state law; and
• (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.”

Proposals to  censor music  date back to Plato’s Republic. In the 1970s, some individuals thought anti-war songs should be censored. In the 1980s, the emphasis shifted to prohibiting sexual and violent lyrics. The Federal Communications Commission (FCC) also sought to fine radio stations for the broadcast of indecent speech. In general,  rap and hard-core rock-n-roll  have faced more censorship than other types of music. Caution must be used in this area to distinguish between governmental censorship and private censorship.

Courts have not interpreted the First Amendment  rights of minors, especially in school settings , to be as broad as those of adults; their speech in school newspapers or in speaking to audiences of their peers may accordingly be censored.

Advancing technology has opened up new avenues in which access to a variety of materials, including obscenity, is open to minors, and Congress has been only partially successful in restricting such access. Parental controls on televisions and computers have provided parents and other adults with some monitoring ability, but no methods are 100 percent effective.

Censorship often increases in wartime to tamp down anti-government speech. In this 1942 photo, W. Holden White, clips items from U.S. newspapers at the Washington, D.C. headquarters of the office of censorship to determine newspaper compliance with censorship rules prescribed by the office. (AP Photo, used with permission from the Associated Press)

Wrestling with sedition and seditious speech

In general, sedition is defined as trying to overthrow the government with intent and means to bring it about; the Supreme Court, however, has been divided over what constitutes intent and means.

In general, the government has been less tolerant of perceived sedition in times of war than in peace. The first federal attempt to censor seditious speech occurred with the passage of the Alien and  Sedition Acts of 1798  under President John Adams.

These acts made it a federal crime to speak, write, or print criticisms of the government that were false, scandalous, or malicious. Thomas Jefferson compared the acts to witch hunts and pardoned those convicted under the statues when he succeeded Adams.

Laws attempting to reduce anti-government speech

During World War I, Congress passed the  Espionage Act of 1917  and the  Sedition Act of 1918 , and the Court spent years dealing with the aftermath.

In 1919 in  Schenck , the government charged that encouraging draftees not to report for duty in World War I constituted sedition. In this case, the court held that Schenck’s actions were, indeed, seditious because, in the words of Justice Holmes, they constituted a “clear and present danger” of a “substantive evil,” defined as attempting to overthrow the government, inciting riots, and destruction of life and property.

In the 1940s and 1950s,  World War II  and the rise of communism produced new limits on speech, and  McCarthyism  destroyed the lives of scores of law-abiding suspected communists.

The  Smith Act of 1940  and the Internal Security Act of 1950, also known as the  McCarran Act , attempted to stamp out communism in the country by establishing harsh sentences for advocating the use of violence to overthrow the government and making the Communist Party of the United States illegal.

After the al-Qaida attacks of September 11, 2001, and passage of the  USA Patriot Act , the United States faced new challenges to civil liberties. As a means of fighting terrorism, government agencies began to target people openly critical of the government. The arrests of individuals suspected of knowing people considered terrorists by the government was in tension with, if not violation of, the First Amendment’s freedom of association. These detainees were held without benefit of counsel and other constitutional rights.

The George W. Bush administration and the courts have battled over the issues of  warrantless wiretaps , military tribunals, and suspension of various rights guaranteed by the Constitution and the Geneva Conventions, which stipulate acceptable conditions for holding prisoners of war.

Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation, such as symbolic speech. In Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of middle and high school students to wear symbolic black armbands to school to protest U.S. involvement in Vietnam. In this photo, Debbie Wallace, left, and Phyllis Sweigert, 17-year-old seniors at suburban Euclid High School in Cleveland, Ohio, display armbands they wore to school in mourning for the dead in Vietnam, Dec. 10, 1965. The girls were suspended from school until Monday. (AP Photo/Julian C. Wilson, used with permission from the Associated Press)

Expressive and symbolic speech

Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. The Court has held that the government may not suppress speech simply because it thinks it is offensive. Even presidents are not immune from being criticized and ridiculed.

Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation. This includes  symbolic speech , in which meanings are conveyed without words.

In T inker v. Des Moines Independent Community School District  (1969), the Court upheld the right of middle and high school students to wear black armbands to school to protest U.S. involvement in Vietnam.

One of the most controversial examples of symbolic speech has produced a series of  flag desecration  cases, including  Spence v. Washington  (1974),  Texas v. Johnson  (1989), and  United States v. Eichman  (1990).

Despite repeated attempts by Congress to make it illegal to burn or deface the flag, the Court has held that such actions are protected. Writing for the 5-4 majority in Texas v. Johnson, Justice William J. Brennan Jr. stated, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

When speech turns into other forms of action, constitutional protections are less certain.

In  R.A.V. v. St. Paul  (1992), the Court overturned a local hate crime statute that had been used to convict a group of boys who had burned a cross on the lawn of a black family living in a predominately white neighborhood.

The Court qualified this opinion in  Virginia v. Black  (2003), holding that the First Amendment did not protect such acts when their purpose was intimidation.

This article was originally published in 2009. Elizabeth Purdy, Ph.D., is an independent scholar who has published articles on subjects ranging from political science and women’s studies to economics and popular culture.

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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9.3: Censorship and Freedom of Speech

Learning Objectives

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hays Code affected 20th-century American mass media.

To fully understand the issues of censorship and  freedom of speech  and how they apply to modern media, we must first explore the terms themselves.  Censorship  is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states, “Congress shall make no law…abridging the freedom of speech, or of the press” (Case Summaries, n.d.). Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (FCC, 2022). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (FCC, 2022).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one. Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film  The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema” (Film Reference, n.d.). The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as  Intolerance  (1916) and  The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity” (Film Reference, n.d.).

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. This changed during the 1930s with the implementation of the Hays Code . Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions” (Film Reference, n.d.). Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship.

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Abreau, 2021). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing” (Abreau, 2021).

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films  Indiana Jones and the Temple of Doom  and  Gremlins  both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include those shown in Table 9.3.1 below.

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings are shown in Table 9.3.2 below.

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world,  Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Smarts, n.d.). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds” (EIGE, 2011). Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Terms & Concepts

• film ratings system
• freedom of speech
• Hay’s code
• indecent material
• obscene material
• television ratings
• video game ratings

Abreau, R. (2021, May 2). What is the Hays Code — Hollywood Production Code Explained . Studio Binder .

Case Summaries (n.d.). First Amendment–Religion and Expression .

European Institute for Gender Equality (EIGE). (2011, March 4). 100th International Women’s Day – 100 Inequalities remain .

Federal Communications Commission. (2022, December 20). Broadcast of Obscenity, Indecency, and Profanity .

Film Reference. (n.d.). Violence .

Media Smarts. (n.d.). Sex and Relationships in the Media .

Licensing and Attribution:  Content in this section is an adaptation of 15.4: Censorship and Freedom of Speech  in Understanding Media and Culture  by University of Minnesota Libraries. It is licensed under a CC BY-NC-SA  license.

Sociological Communication Copyright © 2023 by Veronica Van Ry is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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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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• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

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

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

Acknowledgments

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

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

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Understanding hate speech

Hate speech versus freedom of speech

The need to preserve freedom of expression from censorship by States or private corporations’ is often invoked to counter efforts to regulate hateful expression, in particular online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as to peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable that digital media, including social media, have bolstered the right to seek, receive and impart information and ideas. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition.

To counter hate speech, the United Nations supports more positive speech and upholds respect for freedom of expression as the norm. Therefore, any restrictions must be an exception and seek to prevent harm and ensure equality or the public participation of all. Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action provides key guidance to States on the difference between freedom of expression and “incitement” (to discrimination, hostility and violence), which is prohibited under criminal law. Determining when the potential of harm is high enough to justify prohibiting speech is still the subject of much debate. But States can also use alternative tools – such as education and promoting counter-messages – to address the whole spectrum of hateful expression, both on and offline.

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General António Guterres, May 2019

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Experts say attacks on free speech are rising across the U.S.

BOISE, Idaho (AP) — In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. In Washington state, a lawmaker proposed a hotline so the government could track offensively biased statements, as well as hate crimes. In Florida, bloggers are fighting a bill that would force them to register with the state if they write posts criticizing public officials.

Meanwhile, bans on books and drag performances are growing increasingly common nationwide.

“We are seeing tremendous attacks on First Amendment freedoms across the country right now, at all levels of government. Censorship is proliferating, and it’s deeply troubling,” said Joe Cohn, legislative and policy director with the Foundation for Individual Rights and Expression.

“This year, we’re seeing a wave of bills targeting drag performances , where simply being gender nonconforming is enough to trigger the penalty. We’re also seeing a wave of bills regulating what can be in public or K-12 school libraries,” Cohn said. “On college campuses, we have been tracking data about attempts to get faculty members punished or even fired for speech or expression and the numbers are startling — it’s the highest rate that we’ve seen in our 20 years of existence.”

First Amendment rights had been stable in America for decades, said Ken Paulson, director of the  Free Speech Center  at Middle Tennessee State University, but in recent years many states have reverted to the anti-speech tactics employed by people like Sen. Joe McCarthy during the “Red Scare” of the early 1950s.

WATCH: Librarians in Louisiana at odds with conservative activists working to ban books

McCarthy and others tried to silence political opponents by accusing them of being communists or socialists, using fear and public accusations to suppress basic free speech rights. The term “McCarthyism” became synonymous with baseless attacks on free expression, and the U.S. Supreme Court has referred to the phenomena in several First Amendment-related rulings.

“We are seeing a concerted wave that we have not seen in decades,” said Paulson, highlighting states like Florida where Republican Gov. Ron DeSantis has pushed for legislation that would criminalize drag shows, limit what pronouns teachers can use for students, allow parents to determine what books can be in libraries and block some history classes entirely.

“It’s pretty mind-boggling that so many politicians are waving the flag of freedom while doing anything they possibly can to infringe on the free speech rights of Americans,” Paulson said.

Still, no one political group has a monopoly on censorship — aggression is increasing across the spectrum, Cohn said.

Washington state’s  bias hotline bill , which died in committee earlier this year, was sponsored by Democratic Sen. Javier Valdez and backed by several groups including the Anti-Defamation League, Urban League, Council on American-Islamic Relations and others. It aimed to help the state collect information about hate crimes and bias incidents and to provide support and compensation to victims at a time when  hate crime reports  are rising.

Opponents, including the Foundation for Individual Rights and Expression, said they feared it would chill protected speech because it encompasses both criminal behavior and offensively biased statements.

Hate speech can be damaging and repugnant, but is still generally protected by the First Amendment. The Department of Homeland Security and experts who study extremism have warned that hateful rhetoric can be seen as a call to action by extremists groups.

READ MORE: Arizona’s conservative superintendent sets up critical race theory hotline

Oregon created a similar bias hotline in 2019. It received nearly 1,700 calls in 2021, with nearly 60 percent of the reported incidents falling short of criminal standards, according to an annual report  from Oregon Attorney General Ellen Rosenblum’s office.

“People in power target their political adversaries, so who is being silenced really depends on where you are on the map and its individual context,” Cohn said.

Artist Katrina Majkut experienced that first-hand last week, when artworks she had shown in more than two dozen states over the past decade were unexpectedly censored at a small state school in Lewiston, Idaho.

Majkut uses embroidery to highlight and subvert historically narrow ideas of wifedom and motherhood. She was hired to curate an exhibit at Lewis-Clark State College focusing on health care issues like chronic illness, pregnancy and gun violence.

But March 2, a day before the show’s opening, Majkut and two other artists were told some of their work would be removed over administrator fears about running afoul of Idaho’s “No Public Funds for Abortion Act.”

The 2021 law bars state-funded entities from promoting abortion or taking other measures that could be seen as training or counseling someone in favor of abortion.

Majkut’s  cross-stitch depicting misoprostol and mifepristone tablets  — which can be used together to induce abortion early in pregnancy — was removed from the exhibit along with a wall plaque detailing Idaho’s abortion laws.

Four documentary video and audio works by artist Lydia Nobles that showed women talking about their own experiences with abortion were also removed. And part of artist Michelle Harney’s series of 1920s-era letters written to Planned Parenthood founder Margaret Sanger were stricken from the show.

“To be censored like that is shocking and surreal,” said Majkut, who designs her art to be educational rather than confrontational. “If the most even-keeled, bipartisan artwork around this topic is censored, then everything is going to be censored.”

READ MORE: Florida Republicans advance bills on gender identity, defamation

Logan Fowler, the spokesman for LCSC, said the school made the decision after consulting with attorneys about whether showing the art could violate the law. Republican Rep. Bruce Skaug, the author of the law, said Tuesday that it was not intended to “prevent open discussion” of abortion — only to prevent tax dollars from being used to promote it.

The art exhibit censorship comes just two months after another controversial decision by Skaug. As chairman of the Idaho House Judiciary and Rules Committee, Skaug announced in January that people under age 18 would not be allowed to testify in his committee. Another Republican committee chair soon followed suit.

Lawmakers have the ability to limit committee testimony, and often use those limits to keep the legislature’s work focused and timely. Still, the age-based speech restriction appeared to be a first for the state.

A group of teens took action, launching phone and email campaigns staging protests.

“There is a clear lack of foresight in politicians who seek to eliminate the voices of those who will one day elect and eventually supersede them,” a group of 32 high school student leaders wrote in a joint  opinion piece sent to news outlets  across the state. “We ask Idaho’s Republican leaders, what are you so afraid of?”

The lawmakers eventually modified their rules, allowing youth to testify as long as they have signed permission slips from a parent or guardian.

Skaug said the rule was necessary to ensure parents are aware if their kids are leaving school to testify at the Statehouse. He still intends to give priority to older residents when testimony time is limited, but said he’s not aware of any youth actually being denied the chance to testify so far this year.

For Cohn, the efforts in Idaho and elsewhere reflect the danger of trying to restrict the expression of people who hold opposing views.

“We have to be ever-vigilant if we want our culture of individual freedoms to prevail,” he said. “Bad ideas are better dealt with through debate and dialogue than government censorship.”

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Free Speech vs. Hate Speech

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Roseanne's tweet.

NFL players kneeling.

The President blocking people on Twitter.

These stories are all about the same thing: what is free speech? Who gets to decide? And what happens when one person's speech offends another?

As Sam observes in this episode, those questions are part of a national conversation that sounds very different on the left and on the right. Nadine Strossen's new book attempts to dispel misunderstandings on both sides. It's called Hate: Why We Should Resist It With Free Speech, Not Censorship. Strossen spoke to Sam about several recent news stories with free speech entanglements, and laid out her argument for why the best response to hate speech is more speech.

--Producer Brent Baughman

Interview Highlights

Former ACLU President Nadine Strossen

On the central argument of her book

The most effective way to counter the potential negative effects of hate speech — which conveys discriminatory or hateful views on the basis of race, religion, gender, and so forth — is not through censorship, but rather through more speech. And that censorship of hate speech, no matter how well-intended, has been shown around the world and throughout history to do more harm than good in actually promoting equality, dignity, inclusivity, diversity, and societal harmony.

On hateful speech and why it's legal (most of the time)

You very frequently get public officials and even lawyers saying "hate speech is not free speech." But that is not correct! The Supreme Court never has created a category of speech that is defined by its hateful conduct, labeled it hate speech, and said that that is categorically excluded by the first amendment. Speech cannot be punished just because of its hateful con tent . But when you get beyond content and look at context, speech with a hateful message may be punished, if in a particular context it directly causes certain specific, imminent, serious harm — such as a genuine threat that means to instill a reasonable fear on the part of the person at whom the threat is targeted that he or she is going be subject to violence.

On feeling physically threatened by hateful speech

Not only threatened. You can feel emotionally disturbed. You can feel psychic trauma, which can have physiological manifestations. You can feel silenced. These are all real harms that may be suffered by people who are subject to hate speech that is not punishable.

[Because] even though we acknowledge those harms, loosening up the constraints on government to allow it to punish speech because of those less tangible, more speculative, more indirect harms — that censorial power will do more harm that good, precisely because the pendulum can swing. Not that shockingly long ago it was left-wing speakers, communists and socialist, who were kept off campuses. And civil rights activists were kept off many campuses, because their ideas were certainly hated, certainly seen as dangerous and insulting. And today, there are serious government officials who are saying that Black Lives Matter is a hate group.

Students gather in response to the election of Donald Trump at the University of California Los Angeles on November 10, 2016. College campuses have become a focal point in the free speech debate. Frederic J. Brown/AFP/Getty Images hide caption

Students gather in response to the election of Donald Trump at the University of California Los Angeles on November 10, 2016. College campuses have become a focal point in the free speech debate.

On the right of colleges to refuse to allow a controversial speaker due to security costs

First of all, nobody has a right necessarily to speak on a particular campus. Campuses can set viewpoint-neutral time-, place-, and manner-rules to allocate this scarce resource of the opportunity to speak on campus. Just the way in the city of New York, you can't automatically get a parade permit — it's first-come, first-served.

And make no mistake about it, in an ACLU case — I'm proud to say, quite a few years ago — the Supreme Court held that imposing higher security costs on the speaker because the viewpoint is seen to be more controversial and therefore it's more likely to generate protests and therefore security costs — that that is just an indirect way of discriminating against the viewpoint. And you cannot do that.

On the ACLU's public image perception becoming more aligned with the left under President Trump

That's always been a misconception. People tend not to look at the underlying principle, but instead they look at whose ox is gored in the underlying case. And the reason that we're attacking specific policies of Trump is that those specific policies violate civil liberties principles. We did the same with Barack Obama, with Bill Clinton. The ACLU will issue criticism or praise on an issue-by-issue basis. Trump, no doubt, as a record number of issues on which he is earning criticism. But I don't think there is a single official about whom we cannot issue at least some praise and some criticism.

On the ACLU defending the speech rights of groups like the KKK and NAMBLA, and whether it was ever too much for her to stomach

I think the one that to me was the most vile was the North American Man/Boy Love Association. That to me — they are advocating what I see as a form of child abuse. But I do agree with the Supreme Court that advocacy of illegal conduct, including child abuse, is constitutionally protected. And people may be surprised to hear that. [The Supreme Court] drew a distinction between advocacy of illegal conduct versus intentional incitement of illegal conduct.

Because if we say, 'Oh, well, mere advocacy as opposed to intentional incitement will be enough for this speech that's particularly distasteful to me' — well once you make one exception, you can't hold the line. I know that if we loosened the standard for what was deemed to be advocacy that might be dangerous, Black Lives Matter would probably be the first thing that's endangered. So I think you have to look at the abstract principle and just tell yourself: that is what I'm defending.

On whether the NFL's new rule against player protests violates their free speech

Most people don't know and are somewhat disappointed to find out the first amendment — with its free speech guarantee — only applies to the government. Any private-sector entity, including such a powerful one as the NFL, is not constrained by constitutional free speech guarantees. That said, one can make an argument that they should voluntarily choose to protect such a quintessential patriotic value as freedom of speech.

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How Americans feel about ‘cancel culture’ and offensive speech in 6 charts

Americans have long debated the boundaries of free speech, from what is and isn’t protected by the First Amendment to discussions about “political correctness” and, more recently, “cancel culture.” The internet has amplified these debates and fostered new questions about tone and tenor in recent years. Here’s a look at how adults in the United States see these and related issues, based on Pew Research Center surveys.

This Pew Research Center analysis looks at how Americans view the tenor of discourse, both online and off. The findings used here come from three surveys the Center conducted in fall 2020. Sample sizes, field dates and methodological information for each survey are accessible through the links in this analysis.

In a September 2020 survey, 44% of Americans said they’d heard at least a fair amount about the phrase “cancel culture,” including 22% who had heard a great deal about it. A majority of Americans (56%) said they’d heard nothing or not too much about it, including 38% – the largest share – who had heard nothing at all about the phrase.

Familiarity with the term cancel culture varied by age, gender and education level, but not political party affiliation, according to the same survey.

Younger adults were more likely to have heard about cancel culture than their older counterparts. Roughly two-thirds (64%) of adults under 30 said they’d heard a great deal or fair amount about cancel culture, compared with 46% of those ages 30 to 49 and 34% of those 50 and older.

Men were more likely than women to be familiar with the phrase, as were those who have a bachelor’s or advanced degree when compared with those who have lower levels of formal education.

Democrats and Democratic-leaning independents were about as likely as Republicans and GOP leaners to say they had heard at least a fair amount about cancel culture (46% vs. 44%). But there were more pronounced differences within each party when taking ideology into account. About six-in-ten liberal Democrats (59%) said they had heard at least a fair amount about cancel culture, compared with roughly a third of conservative and moderate Democrats (34%). Similarly, around half of conservative Republicans (49%) had heard of the term, compared with around a third of moderate and liberal Republicans (36%).

Americans were most likely to mention accountability when describing what the phrase cancel culture means to them. As part of the fall 2020 survey, the Center asked U.S. adults who had heard a fair amount or a great deal about the term to explain in their own words what it meant to them. Around half (49%) said it describes actions people take to hold others accountable.

Smaller shares described cancel culture as a form of censorship – such as a restriction on free speech or as history being erased – or as mean-spirited attacks used to cause others harm (14% and 12%, respectively).

About a third of conservative Republicans who had heard of the phrase (36%) described it as actions taken to hold people accountable, compared with roughly half or more of moderate or liberal Republicans (51%), conservative or moderate Democrats (54%) and liberal Democrats (59%).

Conservative Republicans who had heard of the term were also more likely to see cancel culture as a form of censorship: 26% described it as censorship, compared with 15% of moderate or liberal Republicans and roughly one-in-ten or fewer Democrats, regardless of ideology.

In the September 2020 survey, Americans said they believed calling out others on social media is more likely to hold people accountable than punish people who don’t deserve it. Overall, 58% of adults said that in general, when people publicly call others out on social media for posting content that might be considered offensive, they are more likely to hold people accountable . In comparison, 38% said this kind of action is more likely to punish people who don’t deserve it.

Views on this question differed sharply by political party. Democrats were far more likely than Republicans to say that this type of action holds people accountable (75% vs. 39%). In contrast, 56% of Republicans – but just 22% of Democrats – said this generally punishes people who don’t deserve it.

In a separate report using data from the same September 2020 survey, 55% of Americans said many people take offensive content they see online too seriously , while a smaller share (42%) said offensive content online is too often excused as not a big deal.

Americans’ attitudes again differed widely by political party. Roughly six-in-ten Democrats (59%) said offensive content online is too often excused as not a big deal, while just a quarter of Republicans agreed – a 34 percentage point gap. And while 72% of Republicans said many people take offensive content they see online too seriously, about four-in-ten Democrats (39%) said the same.

In a four-country survey conducted in the fall of 2020, Americans were the most likely to say that people today are too easily offended . A majority of Americans (57%) said people today are too easily offended by what others say, while four-in-ten said people should be careful what they say to avoid offending others, according to the survey of adults in the U.S., Germany, France and the United Kingdom.

In contrast, respondents in the three European countries surveyed were more closely divided over whether people today are too easily offended or whether people should be careful what they say to avoid offending others.

Opinions on this topic were connected to ideological leanings in three of the four countries surveyed, with the largest gap among U.S. adults. Around two-thirds of Americans on the ideological left (65%) said people should be careful to avoid offending others, compared with about one-in-four on the ideological right – a gap of 42 percentage points. The left-right difference was 17 points in the UK and 15 points in Germany. There was no significant difference between the left and the right in France.

In the U.S., the ideological divide was closely related to political party affiliation: Six-in-ten Democrats said people should be careful what they say to avoid offending others, while only 17% of Republicans said the same.

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FREEDOM OF EXPRESSION

Your voice matters. You have the right to say what you think, share information and demand a better world. You also have the right to agree or disagree with those in power, and to express these opinions in peaceful protests.

Exercising these rights – without fear or unlawful interference – is central to living in an open and fair society; one in which people can access justice and enjoy their human rights.

Yet governments around the world routinely imprison people – or worse – for speaking out, even though almost every country’s constitution refers to the value of ‘free speech’.

Governments have a duty to prohibit hateful, inciteful speech but many abuse their authority to silence peaceful dissent by passing laws criminalizing freedom of expression. This is often done in the name of counterterrorism, national security or religion. More recently, freedom of expression has come under threat by authorities clamping down on activists, NGOs and individuals helping refugees and migrants.

How governments tolerate unfavourable views or critical voices is often a good indication of how they treat human rights generally.

Amnesty International supports people who speak out peacefully for themselves and for others – whether a journalist reporting on violence by security forces, a trade unionist exposing poor working conditions or an indigenous leader defending their land rights against big business. We would similarly defend the right of those who support the positions of big business, the security forces and employers to express their views peacefully.

We consider anyone put in prison solely for exercising their right to free speech peacefully to be a prisoner of conscience and call for their immediate and unconditional release.

Why is freedom of expression important?

The right to freedom of expression is enshrined in Article 19 of the Universal Declaration of Human Rights, which sets out in broad terms the human rights that each of us has. It was later protected legally by a raft of international and regional treaties.

Defending freedom of expression has always been a core part of Amnesty International’s work and is vital in holding the powerful to account. Freedom of expression also underpins other human rights such as the right to freedom of thought, conscience and religion – and allows them to flourish.

It is also closely linked to freedom of association – the right to  form and join clubs, societies, trade unions or political parties with anyone you choose; and freedom of peaceful assembly – the right to take part in a peaceful demonstration or public meeting.

However, these very freedoms come under regular attack by governments that want to stifle criticism.

For example, in  Egypt  it is currently extremely dangerous to criticize the government. Over the course of 2018, the authorities arrested at least 113 individuals citing a host of absurd reasons including satire, tweeting, supporting football clubs, denouncing sexual harassment, editing movies and giving interviews.

Those arrested have been accused of “membership of terrorist groups” and “disseminating false news”. Detained without trial for months, those who eventually faced trial were sentenced by military courts, even though military trials of civilians, in Egypt as elsewhere, are inherently unfair.

Press freedom

A free press reporting on the issues that interest us and shape our lives is a key building block of any rights-respecting society. Yet in Azerbaijan, Türkiye and Venezuela to name just a few countries, journalists face repression and attacks.

In June 2019,  Tanzania’s parliament  fast-tracked the passing of the Written Laws Bill, which would entrench censorship, among other violations. Journalists in the country already operate within the tight confines of a media law that requires media houses to “broadcast or publish news or issues of national importance as government may direct”.  

In July 2019, the libel trial began in the Philippines against  Maria Ressa , the executive editor of online news outlet Rappler. Ressa, a prominent critic of President Rodrigo Duterte, was arrested in February 2019 on trumped up libel charges after Rappler published detailed investigations into some of the thousands of extrajudicial executions committed by police and unknown armed persons, with Duterte’s explicit encouragement, during drugs-related operations. Her case is widely seen as an attack by the government on press freedom.

During conflict, repression can get worse, such as in  Myanmar  where journalists investigating the killing of Rohingya men and boys by security forces in Rakhine State were arrested and jailed, before being freed under international pressure.

Freedom of speech

Freedom of speech, or freedom of expression, applies to ideas of all kinds, including those that may be deeply offensive. While international law protects free speech, there are instances where speech can legitimately restricted under the same law – such as when it violates the rights of others, or, advocates hatred and incites discrimination or violence.

However, any restrictions on freedom of expression must be provided by law, protect certain public interests or the rights of others and, be clearly necessary for that purpose. .

In 2018, Amnesty International published research that found that  Twitter is a platform where violence and abuse against women flourish , often with little accountability. Instead of the platform being a place where women can express themselves freely and where their voices are strengthened, Twitter leads women to self-censor what they post and limit their interactions. As a company, Twitter is failing its responsibility to respect women’s rights online by inadequately investigating and responding to reports of violence and abuse in a transparent manner.

The digital frontier

The digital world gives many more of us access to the information we need, including to challenge governments and corporations. Information is power and the internet has the potential to significantly empower the world’s seven billion people.

But freedom of expression today still often depends on wealth, privilege and our place in society. Those who are rich and powerful are seldom restricted in expressing their views.. Similarly, those who have their own laptops with broadband, have far greater access to information than those who have to walk miles to an internet café.

Increasingly, some states try to build firewalls around digital communications, or in the case of Egypt, Sudan and Zimbabwe among others, respond to mass street protests with an internet shutdown. Iran, China and Viet Nam have all tried to develop systems that enable them to control access to digital information. In India’s northern Kashmir region, mobile Internet and communications are suspended in response to any unrest. At Amnesty International, we are continually finding new ways to stop our website being blocked in China.

Governments are also using dangerous and sophisticated technologies to read activists and journalists’ private emails and remotely turn on their computers’ camera or microphone to secretly record their activities. In 2014, Amnesty and a coalition of human rights and technology organizations launched ‘ Detekt ’ – a simple tool that allows activists to scan their devices for surveillance spyware.

What is Amnesty doing to protect the freedom of expression?

Case study: poland and the right to protest.

Amnesty International has documented how people in  Poland  have taken to the streets to express their opinions despite restrictive legislation combined with heavy-handed policing, surveillance, harassment and prosecution which threaten to strangle the right to peaceful protest.

Since 2016, tens of thousands of people have protested against repressive legislation aimed at curbing women’s rights and undermining the independence of the judiciary. Protesters have routinely been met with a show of force and restrictive measures that infringe their right to be seen and heard. Hundreds have found themselves in police custody and facing lengthy court proceedings.

In parallel with tightening the laws affecting the exercise of the right to freedom of peaceful assembly, the government has vastly expanded the surveillance powers of law enforcement agencies with evidence that these expanded powers have been used against people engaged in organizing and participating in peaceful protests.

Case study: Surge in Vietnamese prisoners of conscience

In 2019 ,  Amnesty released shocking research showing that the number of prisoners of conscience unjustly jailed across  Viet Nam  had sharply risen by a third in signs of a growing crackdown on peaceful activism by lawyers, bloggers, human rights defenders, environmental activists and pro-democracy campaigners.

The prisoners’ detention conditions remain appalling with evidence of people being tortured and otherwise ill-treated, routinely held incommunicado and in solitary confinement, kept in squalid conditions and denied medical care, clean water and fresh air.

Many prisoners of conscience were jailed for comments made on social media platforms and were targeted using the vague and overly broad provisions of the penal code.

One prisoner of conscience is Tran Hoang Phuc. A pro-democracy and environmental activist, he was arrested in June 2017. Tried and convicted on charges of ‘conducting propaganda against the state’ for making and sharing videos perceived to be critical of the government on social media, he was sentenced to six years in prison, followed by four years under house arrest.

The Solution: What is Amnesty calling for?

• Prisoners of conscience around the world should be released immediately and unconditionally.
• All laws criminalizing people who speak out or protest peacefully, should be struck off the law books.
• Laws against hate speech or other incitement to discrimination and violence must not be used to repress peaceful dissent.
• People should have access to information, and the power of governments and companies to obtain information about individuals and organisations must be restricted.

Learn more about Freedom of Expression

Take our Human Rights Academy course, Speaking out for Freedom of Expression, to learn more and take action.

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• > Information Policies and Strategies
• > Censorship, freedom of speech and freedom of expression

Book contents

• Frontmatter
• 1 Introduction
• Part 1 Contexts for information policy
• Part 2 Information policy sectors
• 5 Censorship, freedom of speech and freedom of expression
• 6 Arguments for protecting speech
• 7 Privacy and data protection
• 8 Freedom of information
• 9 Intellectual property
• Part 3 Conclusion
• References and reading list

5 - Censorship, freedom of speech and freedom of expression

from Part 2 - Information policy sectors

Published online by Cambridge University Press:  08 June 2018

FIRST, WE NEED to explore the relationship between these terms, which are slightly different but intricately related. The topic that most excites comment and draws criticism is censorship, which overwhelmingly people instinctively think of as wrong. Yet, when asked about what we should allow children to view or read, at the least we think we should provide guidance for them and if that is not possible we quickly arrive at a point where, we think for the best, some things are concealed from children. Typically, we conceal harmful or illegal content, and the European Union (EU) has a directive for member states to protect minors against such material by restricting it as they think best. Censorship is a cry that is raised in other circumstances, too. We are reluctant to broadcast material on bomb-making, particularly nuclear weapons, biological agents that might incapacitate, injure or kill, or material that might be mentally disturbing for some categories of patients in secure hospitals. The list is easily extended; the question is, where does it stop?

It is clear that we want to limit the range of material that can automatically be banned, and also limit the classes of people who can be denied access to any material they want to see. If we don't agree to such a limitation we are handing over to those with power and coercive authority – usually but not exclusively governments – the freedom to deny access at will as suits them, and without any certainty that the ban will be removed when any temporary need is over. This is just a matter of experience, and that fact brings us closer to the real world where we must consider what actually happens as well as what we intend. If you ban a child from going to the cinema to see certain types of film you may find that you have, apparently, got a compliant child, but it may later turn out that when the child visits friends they watch even worse material downloaded or on videos: policy decisions and the strategies used to implement them do not always lead to the intended results.

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• Censorship, freedom of speech and freedom of expression
• Ian Cornelius
• Book: Information Policies and Strategies
• Online publication: 08 June 2018
• Chapter DOI: https://doi.org/10.29085/9781856048637.008

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Regulating Freedom of Speech on Social Media: Comparing the EU and the U.S. Approach

• Transatlantic Technology Law Forum
• Marie-Andrée Weiss

Research project

Investigator: Marie-Andrée Weiss

Abstract: While freedom of speech is the general rule in the U.S. and in the European Union (I), there are nevertheless exceptions to this freedom on both sides of the Atlantic (II). Some of these national exceptions aim at preventing hate speech, defamation, or threats, while others aim at preventing speech which is considered in other countries as the mere expression of an opinion, albeit unsavory, but nevertheless legal. Social media sites allow the rapid spread of all speech, whether protected or not, and such messages spread around the world, and sometimes stir people into action. Social media played an important role in the Arab Spring, the London riots, and the Occupy Wall Street movements. But while the web links us all, each country nevertheless retains its own legal framework, and may or may not view a particular speech, such a blasphemy or lèse majesté, as legal.

What is the purpose of these national exceptions to free speech (III)? Letting negative speech to be published has both positive and negative consequences. However, deciding whether a particular speech is worthy of protection, or not, is a slippery slope. Indeed, not every value is universally recognized, with the possible exceptions of safety and privacy. However, even then the laws balancing these two values with freedom of speech differ greatly in the U.S. and in Europe. Striking a balance between undeterred free speech and censorship to protect values considered worthy of protection is indeed a difficult exercise. Censorship of social media speech may not outweigh the benefit of forbidding a particular speech, but allowing complete free speech on social media may also have negative impacts, such as fostering cyber bullying or hate speech.

Speech is not black or white, bad speech on one side and good speech on the other side. Who has the right to decide which speech must be suppressed on social media sites (IV)? Some states have chosen the radical way of blocking web access entirely as a way to censor speech. Other states have pressured social media sites to monitor and block content deemed unsavory. Users have sometimes taken matters into their own hands, and Twitter has been pressured to give its users the power to block content. In Europe, Article 17 of a new Data Protection Regulation proposes to give users the right to be forgotten, that is, the power to have their personal data erased from the web. The European Court of Justice already ruled in May 2014 that search engines must provide a way for search results to be deleted. Knowing that one’s data may stay online forever and ever gives one pause. More and more people are thinking twice before hitting the publish button, sometimes with the guidance of corporate social media policies or ethics opinions. The rights and the plights of the person who is the topic of the speech must be taken into account. Is the person who is denied the right to be forgotten a victim, as is someone who has been slandered or threatened online?

What are the responsibilities and liabilities of social media sites (V)? The different laws regulating social media speech need to be respected, and corporations must develop programs and corporate policies to be compliant with them. Internet intermediaries may be liable for third party content in the U.S. and in Europe. But even if a corporation complies with the laws of its own country, how should it respond when receiving an international warrant in a free speech case? And how should these Internet intermediaries respond to a request to take down or to censor content? Regardless of their ultimate decisions, how they act upon these issues is watched and commented upon all around the world, on social media.

Abstract – PDF Version

Free Expression Network

Home » Free Expression Network

The  Free Expression Network (FEN)  is an alliance of organizations dedicated to protecting the First Amendment right of free expression and the values it represents, and to opposing governmental efforts to suppress constitutionally-protected speech. FEN members provide a wide range of expertise, resources and services to policymakers, the media, scholars, and the public at large.

Members meet on a quarterly basis to discuss and debate complex First Amendment issues, to share information and strategies, to coordinate activities, and to organize collective action.   FEN members also participate in digital information sharing and programmatic outreach among members between meetings.

FEN member organizations include:

• American Association of University Professors (AAUP)
• American Booksellers for Free Expression (a division of the American Booksellers Association)
• American Civil Liberties Union (ACLU)
• American Library Association, Office of Intellectual Freedom (ALA-OIF)
• American Society of Journalists and Authors
• Americans United for Separation of Church and State
• Amnesty International
• Association of University Presses (AUPresses)
• Authors Guild
• Banned Books Week Coalition
• Brechner Center for Freedom of Information
• Brennan Center for Justice, NYU School of Law
• California Anti-SLAPP Project
• Center for Democracy and Technology (CDT)
• Comic Book Legal Defense Fund
• Committee to Project Journalists
• Defending Rights and Dissent
• DKT Liberty Project
• Dramatists Guild of America (DGA)
• Electronic Frontier Foundation (EFF)
• First Amendment Center, Freedom Forum Institute
• The First Amendment Project
• Food Integrity Campaign
• Foundation for Individual Rights in Education (FIRE)
• Free Speech Coalition ​
• Freedom to Read Foundation
• Friends Committee on National Legislation
• George Washington University School of Law
• Government Information Watch
• Hofstra University School of Law
• Index on Censorship
• Information Society Project, Yale Law School
• Institute for Free Speech
• Institute for Research on Labor and Employment, University of California Berkeley
• Journalism Education Association
• Kent State University
• Knight First Amendment Institute, Columbia University
• Kurt Vonnegut Museum and Library
• Liberty and Law Center, George Mason University
• Media Coalition
• Media Law Resource Center, Inc.
• National Coalition Against Censorship (NCAC)
• National Council of Teachers of English (NCTE)
• National Youth Rights Association (NYRA)
• Online Policy Group
• Open Technology Institute, New America
• OpenTheGovernment.org
• PEN America
• People for the American Way (PFAW)
• Project Censored
• Public Participation Project, Anti-SLAPP
• Radio Free Asia (RFA)
• Recording Industry Association of America
• Religious Freedom Center
• The Reporters’ Committee for Freedom of the Press
• Reporters Without Borders
• S.I. Newhouse School of Public Communications, Syracuse University
• Society of Children’s Book Writers and Illustrators
• Student Press Law Center (SPLC)
• University of Wisconsin-Stout – Menard Center for the Study of Institutions and Innovation
• Woodhull Freedom Foundation

About the FEN Steering Committee

FEN meetings and other activities are planned and organized by the FEN Steering Committee, which is composed of representatives from member organizations. All FEN members are eligible to participate in the steering committee. Organizational requests to join FEN or nominations for membership will be addressed by the steering committee, which will consider whether the mission of the organization seeking inclusion in FEN is consistent with FEN’s goal to protect the First Amendment and promote free expression.

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Censorship and Freedom of Expression

• Russia Russia’s Secret Trial for Gershkovich, EU’s Rightward Shift, Boeing in Space, and More Podcast A Russian court moves judicial proceedings for detained U.S. journalist Evan Gershkovich to Yekaterinburg for a closed-door espionage trial; the success of far-right parties in the European Parliament elections challenges the power of several incumbent European Union (EU) leaders; the Boeing Starliner "Calypso" spacecraft prepares to return from the International Space Station after delays; and Israeli Prime Minister Benjamin Netanyahu dissolves his war cabinet.  Podcast with Carla Anne Robbins and Miriam Elder June 20, 2024 The World Next Week
• Religion Religion and Foreign Policy Webinar: USCIRF's 2024 Annual Report on International Religious Freedom Play Stephen Schneck and Eric Ueland, commissioners of the United States Commission on International Religious Freedom (USCIRF), will join Elizabeth Cassidy, senior strategic advisor of USCIRF, to present the key policy recommendations of the USCIRF 2024 annual report and the foreign policy implications of international religious freedom today.  USCIRF is an independent, bipartisan U.S. federal government agency created by the 1998 International Religious Freedom Act that monitors the universal right to freedom of religion or belief abroad; makes policy recommendations to the president, secretary of state, and Congress; and tracks the implementation of these recommendations. USCIRF’s nine Commissioners are appointed by either the president or congressional leaders of each political party, and are supported by a non-partisan professional staff.  Webinar by Elizabeth K. Cassidy, Stephen Schneck, Eric Ueland and Irina A. Faskianos June 4, 2024 Religion and Foreign Policy Series
• Ukraine Ukraine Tries To Halt Russian Advance, Biden Woos Kenya, the Fate of Assange, and More Podcast Ukraine rushes to push back against a new Russian offensive in its northeast Kharkiv region; U.S. President Joe Biden invites Kenyan President William Ruto for a state visit, the first U.S. state visit for an African leader since 2008; London’s High Court decides on whether to extradite WikiLeaks founder Julian Assange to the United States to stand trial; and tens of thousands protest in Tbilisi, Georgia, after its parliament passes the controversial “foreign agents” bill. Podcast with Robert McMahon and Carla Anne Robbins May 16, 2024 The World Next Week

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Senior Fellow for Digital and Cyberspace Policy

• Media Publishing in a Polarized World Podcast In a wide-ranging conversation, Foreign Affairs Editor Dan Kurtz-Phelan joins Why It Matters to discuss nonpartisan publishing in a polarized political climate, the state of press freedom around the world, and the future of journalism. Podcast with Gabrielle Sierra and Daniel Kurtz-Phelan May 10, 2024 Why It Matters
• Censorship and Freedom of Expression World Press Freedom Day 2024: Mounting Threats, Renewed Purpose Podcast In this special episode to mark World Press Freedom Day, Jeffrey Gedmin, cofounder and editor-in-chief of American Purpose and former president of Radio Free Europe/Radio Liberty, joins Robert McMahon and Carla Anne Robbins to discuss the global state of press freedom. They cover the challenges that a growing number of journalists face in exile or imprisonment, the U.S. role in upholding freedom of the press, and more. Podcast with Robert McMahon , Carla Anne Robbins and Jeffrey Gedmin May 2, 2024 The World Next Week
• Artificial Intelligence (AI) The President’s Inbox Recap: Governance of Artificial Intelligence The United States is behind its peers when it comes to regulating artificial intelligence (AI). Blog Post by Michelle Kurilla March 4, 2024 The Water's Edge
• Censorship and Freedom of Expression Press Freedom and Digital Safety Play Ela Stapley, digital security advisor at the International Women's Media Foundation, discusses strategies for the safety of journalists as they report on the 2024 election cycle. Tat Bellamy-Walker, communities reporter at the Seattle Times , discusses their experiences with online harassment and best practices for journalists on digital safety. The host of the webinar is Carla Anne Robbins, senior fellow at CFR and former deputy editorial page editor at the New York Times . A question-and-answer session follows their conversation. TRANSCRIPT FASKIANOS: Welcome to the Council on Foreign Relations Local Journalists Webinar. I’m Irina Faskianos, vice president for the National Program and Outreach here at CFR. CFR is an independent and nonpartisan membership organization, think tank, and publisher focused on U.S. foreign policy. CFR is also the publisher of Foreign Affairs magazine. As always, CFR takes no institutional positions on matters of policy. This webinar is part of CFR’s Local Journalists Initiative, created to help you draw connections between the local issues you cover and national and international dynamics. Our programming puts you in touch with CFR resources and expertise on international issues and provides a forum for sharing best practices. We are delighted to have over forty journalists from twenty-six states and U.S. territories with us today for this discussion on “Press Freedom and Digital Safety.” The webinar is on the record. The video and transcript will be posted on our website after the fact at CFR.org/localjournalists, and we will circulate it as well. We are pleased to have Ela Stapley, Tat Bellamy-Walker, and host Carla Anne Robbins with us for this discussion. I have shared their bios, but I’ll give you a few highlights. Ela Stapley is a digital security advisor working with the International Women’s Media Foundation. She is the coordinator of the course “Online Harassment: Strategies for Journalists’ Defense.” Ms. Stapley trains journalists around the world on digital security issues and provides one-on-one support for media workers in need of emergency assistance. Tat Bellamy-Walker is a communities reporter at the Seattle Times . Their work focuses on social justice, race, economics, and LGBTQIA+ issues in the Pacific Northwest. Tat also serves on the National Association of Hispanic Journalists LGBTQIA+ Task Force, as a member of the Seattle Times Committee on Diversity, Equity, and Inclusion. And Carla Anne Robbins is a senior fellow at CFR and co-host of the CFR podcast “The World Next Week.” She also serves as the faculty director of the Master of International Affairs Program and clinical professor of national security studies at Baruch College’s Marxe School of Public and International Affairs. And previously, she was deputy editorial page editor at the New York Times and chief diplomatic correspondent at the Wall Street Journal . Welcome, Ela, Tat, and Carla. Thank you very much for being with us today. And let me turn the conversation now over to Carla. ROBBINS: Irina, thank you so much. And, Ela and Tat, thank you so much for doing this. And thank you, everybody who’s here today. We’re going to chat among us just for about twenty, twenty-five minutes, and then questions. You’re all journalists; I’m sure you’re going to have a lot of questions. So, Ela, can we start with you by talking about the threat environment, as we national security people refer to it? The IWMF announcement on your safety training—and I want to talk about that—referred to, quote, a “spike in physical and digital violence” directed against U.S. newsrooms in particular. And it said, “This year alone, thirty journalists have been assaulted and eight have been arrested in the U.S., all following a surge of anti-media rhetoric.” And you also said that the U.S. currently ranks forty-fifth on the World Press Freedom Index, down from thirty-two just a decade ago; and also that this abuse disproportionately affects women and diverse journalists, who are often reluctant to speak out for fear of jeopardizing their careers. Can you talk a little bit about the threat environment here in the U.S., what’s driving it, and the different forms it’s taking—it’s taking? STAPLEY: Yeah, sure. So I’m Ela Stapley. I’m a digital security advisor. So when I look at the threat environment, I’m looking at it from a digital safety standpoint. What we do see in the U.S., and we have seen now for a number of years, is a massive uptick in online abuse—or online violence, as it’s now called, in order to get across the seriousness of the situation. So when we’re talking about online abuse/online violence, what we’re really saying there is attacks on journalists that are now so serious that it’s really limiting their ability to do their work. And it’s really having—I don’t say this lightly—an impact on democratic conversation. So one of the biggest issues that you see in the U.S. is this, along with common tactics that are used with online harassment and online violence. And that includes the publishing of journalists’ personal information online, known as doxing. This includes the home address or personal contact, such as a personal email or personal phone number for example, with an intent to do them some kind of harm. And we do see that being used against journalists in the U.S., especially if they’re covering particular beats. That includes so—kind of far-right or alt-right groups, for example, who—one of their tactics is doxing journalists online or people who talk about them in a way that they don’t agree with. So that is one of the biggest threats we’re seeing. And we’re in an election year. I do think we did see this during the last election. There will be an increase in online abuse and harassment during that time, and all the other threats that come with it, which include doxing but also things such as phishing attacks, for example; malware attacks; and possible hacking attacks of accounts, for example, could also be something that we see an uptick in. Other threats that journalists are facing. If they’re going out and they’re covering the election—so some of these rallies or places where they’re going—the chance of a physical confrontation might be quite high. So you’re seeing there kind of damaged equipment, which it sounds like a physical safety issue but is actually a digital security issue as well. So journalists quite often carrying their personal devices instead of work devices, that’s very common, especially for freelancers. And you know, if you haven’t backed those devices up, the content on them; or if you’re detained and those devices are searched, for example; what about the content that you have on them? How safe is that content? Not very. And do you have sensitive contacts on there or content that could put you or your sources at risk is something I’ll say that journalists, you know, need to be thinking about, I would say. And we do see that across the U.S. Obviously, some areas, some states may be more complicated than others. ROBBINS: So I want to get to Tat and talk about your experiences and that of your colleagues, and then want to talk to both of you, because it seems like there’s this intrinsic tension here because—I mean, I’m going to really date myself—back in the day, when I started in the business, the idea that we would want to not share our emails or not share our phone numbers with people who we would want to be reaching out with us, we wouldn’t want to hide from potential—people who could be potential sources. So I understand there has to be, you know, a separation between the public and the private because the private can really be a vulnerability, but it's certainly a very different world from the world in which—when I started. And I will add I started writing with a typewriter back in the—Tat, there used to be typewriters. For you young’uns. OK. So, Tat, can you talk about your experience and that of your colleagues, in Seattle but also the people that you deal with in the groups that you work with? BELLAMY-WALKER: Yeah. So I’ll talk a little bit about, like, my, like, personal experience. So last year I was covering, like, the local response to, like, the national, like, uptick in anti-drag legislation, and I interviewed, like, several, like, trans drag performers about, you know, how that had an impact on them. Like, it severely, like, limited their, you know—in terms of, like, violence, they were experiencing violence, and it was, like, difficult for them to navigate this, like, increasingly, like, hostile climate where, like, anti-drag, like, legislation was just going through the U.S. So from me, like, writing that story, I started to get, like, a lot of, like, transphobic emails targeting me and my sources. And then from, you know, the, you know, transphobic emails and messages, later on, there ended up being, like, at this conservative Facebook page that also seen, like, the stories that I cover. And I’ve been covering, like, LGBTQ issues for a very long time including writing, you know, personal essays about my experiences as, like, a trans person. And they—like, they wrote this whole—this whole Facebook post about, you know, like calling me, like, a girl, like—it was, like, this whole thing. And they included, like, you know, that I work at the—at the Seattle Times . Like, it was, like, this very intense situation. And it ended up escalating even more to the Blaze writing a story about me. And it just—like, it just escalated from me. You know, I wrote the story. Then, you know, there was the conservative Facebook page. And then, you know. You know, it ended up in a story being written about me. And so, like, things like that are very—are very serious, and really do you have, like, a negative impact on how, like, trans journalists, like, do our work. And for me, like, at that time, it did make me feel pretty, like, traumatized to see, like, how, you know, my story was, like, taken—like, it was—it just—it felt like it was just being used as this—like, this negative force, when I was trying to write about, like, why these drag performers were pushing for their craft, and why they—you know, be felt so intensely to push for their craft, at a time of such hostility targeting drag performers. So for me, at that time, what was most important was to, like, assess, like, my online presence, and see how far was this going. Like, how far was this harassment going? So I made sure to, like, lock down my accounts. You know, that was very important for me to do. Also, having a friend document the abusive language that was coming up under the different post was very helpful. And just kind of like logging what was happening to me on, like, a day-to-day basis. Yeah, so that's essentially what I experienced. And it made me want to—I guess, in some way it made me want to make sure that I'm very careful about the information that I put out there about myself. So I have since, like, removed, like, my email address, you know, from the Seattle Times website. I try to be pretty careful about what I put online about myself. Yeah, so that—I would say those—that is how that had, like, an impact on me and my role in journalism. ROBBINS: So before you wrote that story—because, of course, you were writing about people being harassed because of what they did—did you think about the fact that you were going to be harassed for what you did in writing about them? BELLAMY-WALKER: At that time, I did not—I did not think about that, about how, like, writing about this story would have an impact on me. At that time, I did not think about that. But now, like, in hindsight, I know that it's important to be prepared for those, like, online attacks. And, like, vitriol and in everything. But yeah, it just—like, I didn't realize, like, how far it would go. Because at that time I was also pretty vocal about, you know, the lack of diversity of trans journalists in—just in journalism and the industry in general. So that also caught fire online with folks, you know, targeting me for that as well. So, I feel like all of those situations started to make me, like, a very big target for—you know, for these for these folks. But I know now in the future that it's important for me to prepare for these online attacks and everything. ROBBINS: So you're talking about you preparing. Ela, I want to go back to the training that IWMF does, and this handbook, that we're going to share with everybody, that you all have developed. Which has really, I think, absolutely fabulous worksheets. This is one which I have here, which is an online violence risk assessment, which talks about things like have you previously been targeted. You know, questions that you want to ask yourself, that newsrooms want to ask themselves before the work starts. Can you talk about the training that you all have done, and some of the—some of the things that take place in that training, that that makes—preemptively, as well as once things have happened? Some of them are big changes—raising awareness in the newsroom—and some of them are actually technical changes. Like some of the things Tat’s talking about, training people about how to even reel back their information. When I read this I thought to myself, God, there’s so much information out there. Is it even possible to pull that back? STAPLEY: Yeah, so, unfortunately, Tat’s story is pretty familiar to me. It’s a story I’ve heard many times. And what we used to see—so I’ll talk a little bit about how online harassment kind of came to be and where it is now, just very briefly. So it used to be in the newsroom, online violence or harassment was seen as, you know, something that happened to normally women journalists, so nobody really paid that much attention, if I’m honest with you. It’s only in the last few years that newsrooms have started more seriously to pay attention to online violence as an issue in terms of protecting their journalists. So online harassers were also seen as kind of just a guy in a hoodie in their basement attacking a person over and over. And that stereotype still exists. That person still exists. But now there’s a whole other layer, there’s a whole array of other actors involved, including state-sponsored actors, particular groups online who are hacking groups, but also other groups who feel very passionately about particular topics on the internet. And I use the word “passionate” there not in—not in a positive sense but also negative. So they have strong opinions about it. And they will target journalists that publish on these issues. And I think before we could predict who those journalists would be. So if you were covering particular beats you were more likely to get harassment. But now we’re seeing it as just a general attack against journalists, regardless of the beat. So if you’re a sports journalist, you’re likely to get attacked by sports fans equal if you’re covering—you know, the journalists who are covering LGBTQ+ issues, anything to do with women, anything to do with race—disproportionately likely to face attacks. And if they are from that community themselves, even more so. There’s a lot of academic research that’s been done on this. So Tat’s situation, unfortunately, for me in my position, I would see Tat, I would think: This is a story that Tat’s covering. The likelihood of Tat getting abuse is incredibly high. Now, from our work with newsrooms, what we began to see is that newsrooms started to think about how they could better protect their staff. In some newsrooms, you know, that conversation needed to be had. But some newsrooms were reaching out to us proactively. And I have to say, the Seattle Times was one of those. And I have to give a big shoutout to the Seattle Times for their interest in the safety and security of their journalists. And we’ve worked very closely with the Seattle Times on this guide, actually. So part of the pre-emptive support is not only raising awareness with upper management, because if upper management are not on board it’s very difficult to implement changes, but also putting good practices in place. So the more you can do in advance of an online attack, the better it is for you. Because it’s very difficult to be putting best practices in place when you’re in the middle of a firestorm. So the more pre-emptive steps you can take, the better it is for you, as a newsroom but also as an individual journalist within that newsroom, especially if you fit into one of those categories that are more high risk. So we, at the IWMF, we've been working very closely with journalists. We started training journalists and newsrooms in data protection. So how to best protect your data online? This is the kind of information Tat was talking about—your email address, your cellphone, your home address. But what we realized was the training wasn't enough, because after the training the journalist would go, well, now what? And the newsrooms would be, like, well, we don't have anything. So what we needed was policy. We needed best practices that journalists could access easily and, ideally, roll out fairly easily to staff. Now, I will say that a lot of content for this does exist. There are other organizations that have been working on this topic also for an equally long number of times, and they do amazing work. But what we were hearing from journalists was: There's a lot of information and we need short, simple one-pagers that will really help us protect ourselves. And also. editors were saying: We need it to help protect our staff. So they didn't want to read a fifty-page document. What they wanted was a one-page checklist, for example. So the guide that we created came out of a pilot that we ran with ten newsrooms in the U.S. and internationally, where we worked with—and the Seattle Times was one of those—we worked with the newsroom very closely, with a particular person in that newsroom. to think: What do they need and how could we implement that for them? In some cases, in the Seattle Times , they created their online—their own guide for online harassment. In some cases, it was newsrooms that they only could really manage to have a checklist that would help them protect staff data as quickly as possible. So it really depends. Different newsrooms have different needs. There's no really one-size-fits-all when it comes to protecting staff. I can't say to this newsroom, you need to do this. I can say, what is your capacity? Because a lot of newsrooms are overstretched, both financially but also in terms of people. And how many cooks in the kitchen? Generally, the bigger the newsroom, the more difficult it is to roll out change quickly because you need more buy-in from different areas within the newsroom. And the most successful pre-emptive support we see is from newsrooms where there is, what we call, a newsroom—a champion in the newsroom. Someone who pushes for this. Someone who maintains that momentum and is also able to communicate with HR, for example. Because some support needs to come from HR. What do you do if you've got a journalist who needs time off, for example because they've been getting death threats? Support from IT departments. Traditionally, IT departments in newsrooms are responsible for the website, for making sure your email is running. They're not generally resourced and trained in how to deal with a journalist who's receiving thousands of death threats via their Twitter feed. So getting newsrooms to think about that, and also getting newsrooms to think about you have journalists who are using their personal social media for work-related content. And you request them to do this. But you are not responsible for protecting those accounts. And that’s a real gray area that leaves a lot of journalists very vulnerable. So their work email may have all the digital security measures in place and helped along by their IT team, but their personal Instagram account or their Facebook account has no security measures on it at all. And that is where they will be most vulnerable. Because online attackers, they don’t just look at the journalist in the newsroom. They look at the journalists, the whole picture. So your data that you have on the internet is really your calling card to the world. So when people Google you, what they see is how you are to them. So they make no distinction there. There’s no distinction for them in terms of work and personal. So at the IWMF what we’ve been doing is really working with newsrooms to help them roll out these best practices, best as possible, to put them together, to help them write them, and then to sit with them and try and figure out how they can roll it out. And some do it quicker than others, but there’s been a lot of interest. Especially now, during the election. ROBBINS: So, Tat, can you—what’s changed since your experience? What do you do differently now? BELLAMY-WALKER: Yeah. I would say maybe like one of the main things that I—that I do differently is, like, trying to prepare ahead of these potential attacks. So that includes like, doxing myself and removing personal info about myself, like, online. So like signing up for, like, Delete Me, sending takedown requests to data broker sites, submitting info removal requests to Google. Sometimes that works. Sometimes it doesn’t. But trying to, like, take away that, like, personal information about myself. I would also say, locking down my accounts and using more two-factor authentication. For, like, my passwords in the past, I have just used very simple, easy-to-remember passwords. But I have learned, like, since the training that it’s really important to have a password that’s way more secure. Even for me on the go, I just want something that’s easy to remember. So using, like, a password manager, like one password. So that has also been helpful for me. And also paying attention to my privacy settings. You know, on, like, Facebook or Twitter. You know, making sure that it’s only me that can look up, like, my phone or my personal, like. email address. So that is helpful. And just generally, like, using the resources from IWMF’s online violence response hub. That has been very helpful as well, and making sure that I have a good self-care practice. And having, like, a team of folks that I can process these different challenges with, because unfortunately, like, you know, this won’t probably be, like, you know, the last time that I experience threats like this, given the nature of my reporting. So it’s really important for me to also have, like, a self-care practice in place. ROBBINS: So maybe, Ela, you want to go through some of that a little bit more deeply, although Tat sounds like Tat’s really on top of it. So these online data brokers, can you just—do you have to pay them to delete yourself? Or are they legally—you know, do they have to respond to a request like that? STAPLEY: OK. So let me start by saying that the U.S. has some of the worst data privacy laws I’ve ever seen. ROBBINS: We’ve noticed that before. STAPLEY: So it’s very difficult for a journalist to protect their personal information, just because so much information in the U.S. has to exist in a public-facing database, which, for me, is quite astounding really. If you buy a house—I don’t know if this is statewide or if it’s just in certain states— ROBBINS: Let me just say, as journalists, we are ambivalent about this, OK? On a certain level, we want to protect ourselves. But on another level, that’s really useful if a corrupt person is buying that house, OK? So we’re—you know, we’re not really crazy about the ability to erase yourself that exists in Europe. So we’re ambivalent about this. But please, go on. STAPLEY: Yeah, but I think from a personal safety standpoint it makes you very vulnerable. And the reason for this is that journalists are public-facing. So but you don't have any of the protection that is normally offered to kind of public-facing people. If you work in government, for example, if you're incredibly famous and have a lot of money, for example, you can hire people. So a lot of journalists don't have that. So it makes them very vulnerable. And they're also reporting on things people have strong opinions about, or they don't want to hear. And they're also very—they're very visible. So and they give—this gives people something to focus on. And when they start digging, they start to find more and more information. So and when I talk about journalists having information on the internet, I’m not saying that they shouldn’t have anything. Because a journalist has to exist on the internet in some form, otherwise they don’t exist and they can’t get work, right? So it’s more about the type of information that they have on the internet. So ideally, if I were to look a journalist up online, I would only find professional information about them, their professional work email, where they work, probably the town they live in. But I shouldn’t be finding, ideally, pictures of their family. I shouldn’t be finding pictures of their dog in their home. I shouldn’t be finding photos of them on holiday last year, ideally. So it’s more about controlling the information and feeling that the journalists themselves is in control of that information that they have on the internet, rather than people putting information on the internet about you. So data brokers sites, you’re very familiar with them. As journalists, you use them to look up sources, I’m sure. But people are also using them to look up you. If I was a citizen, never mind just a journalist, in the United States, I would be signing up to a service. There are a number of them available. One of them is called Delete Me. And they will remove you from these data aggregate sites. Now you can remove yourself from these data aggregate sites, but they are basically scraping public data. So they just keep repopulating with the information. So it’s basically a constant wheel, basically, of you requesting the information to be taken down, and them taking it down, but six months later putting it back up. So companies will do this for you. And there’s a whole industry now in the U.S. around that. Now the information that they contain also is very personal. So it includes your home address, your phone number, your email. But also, people you live with, and family members, et cetera. And what we do see is people who harass online, if they can't find data on you they may well go after family members. I've had journalists where this has happened to them before. They've gone after parents, siblings. And so it was a bit about educating your family on what you're happy and not happy sharing online, especially if you live or have experienced already harassment. So that's a little bit about data broker sites. We don't really see this in any other country. It's very unique to the United States. With all the good and bad that they bring. But in terms of privacy for data for journalists' protection, they're not great. Other preemptive things that journalists can do is just Google yourself, and other search engines. Look yourself up regularly and just know what the internet says about you—whether it’s negative, whether it’s positive. Just have a reading of what the internet is saying about you. I would sign up to get Google Alerts for your name, and that will alert you if anything comes up—on Google only—about you. And when you look yourself up online, just map if there’s anything there that you’re slightly uncomfortable with. And that varies depending on the journalist. It could be that some are happier with certain information being out there and some are less happy. But that’s really a personal decision that the journalist makes themselves. And it really depends on, what we call in the industry, their risk profile. So what do I mean by that? That’s a little bit what I was talking about earlier, when I was talking about Tat’s case. The kind of beat you cover, whether you’ve experienced harassment previously, or any other digital threats previously, who those attackers may be. So it’s very different the far right or alt-right, to a government, to, you know, a group on the internet of Taylor Swift fans, for example. So knowing who the threat is can be helpful because it helps you gauge how more or less the harassment will be and also other digital threats. Do they do hacking? Are they going to commit identity theft in your name? So getting a read on that is very important. Identity theft, a lot of groups like to attack in that way, take out credit cards in your name. So it’s quite good to do a credit check on yourself and put a block on your credit if you are at high risk for that. And you don’t need to have this all the time. It could just be during periods of high levels of harassment. For example, during an election period where we see often a spike in online harassment. Once you have seen information about yourself online, you want to take it down. If you are the owner of that information, it’s on your social media, et cetera, you take it down. The internet pulls through, it removes it. Please bear in mind that once you have something on the internet it’s very difficult to guarantee it’s completely gone. The reason for that is people take screenshots and there are also services such as the Internet Archive, services like the Wayback Machine. These types of services are very good at taking down data, actually, if you request. You have to go and request that they remove your personal data. So you may have deleted information from Google or from your own personal Facebook, but maybe a copy of it exists in the Wayback Machine. And quite often, attackers will go there and search for that information and put it online. So if somebody has put information about you on what we call a third-party platform—they’ve written a horrible blog about you, or it exists in a public database—then it’s very difficult to get that data taken down. It will depend on laws and legislation, and that varies from state to state in the U.S., and can be quite complicated. I’ve had journalists who’ve been quite successful in kind of copyright. So if people are using their image, they’ve—instead of pursuing it through—there are very few laws in place to protect journalists from this, which is something else that that’s an issue. If you do receive online harassment, who do you go to legally? Or maybe even it’s the authorities themselves that harassing you, in certain states. So maybe you don’t want to go to the authorities. But there’s very little legal protection really there for you to get that data taken down and protected. So once you’ve done kind of knowing what the internet says about you, then you just need to make sure you have good account security. What do I mean by that? That means having something called two-factor authentication turned on. Most people are familiar with this these days. They weren’t when I was doing this five years ago. Nobody had heard of it. Most people are using it now. Most people are familiar with this through internet banking, where you log into your account and a text message comes to your phone or an email with a code. Most online services offer this now. Please, please turn on two-factor authentication. There are different types. Most people use SMS. If you are covering anything to do with alt-right, far right, anything where—or hacking groups, or particular—if you’re covering foreign news, I don’t know if there’s here, and you’re covering countries that like to hack a lot, you want to be looking at something a bit more secure, such as an app or a security key. And then making sure yeah, and Tat mentioned a password manager. The most important thing about passwords is that they're long. They should be at least fifteen, one-five, characters. And they should be different for each account. Sorry, everyone. And the reason for that is if you are using the same password on many accounts, and one of those services that you have signed up for gets hacked, they've been keeping your password in an Excel sheet on their server instead of an encrypted form, then everyone will have your password for your Gmail account, your Instagram account, et cetera. That's why it's really important to have different passwords for different accounts. How you can do that? Using a password manager or, it is statistically safer to write them down and keep them safe in your home. If you feel safe in your home, if you're not at risk of arrest and detention and you don't cross borders, statistically it's much safer to write them down. Don't obviously stick them to your computer, but you can keep them somewhere safe in your home. Much safer than having passwords that are very short or reusing the same password on many accounts. Or, on any other account. That will prevent hacking, basically. Which online abusers do like to do? So that's kind of a little bit of a very quick walkthrough on that. And we do have resources that we can send out which will guide you through that. ROBBINS: So I want to turn it over to the group. I’m sure you guys have questions. You’re journalists. So if you could raise your hands or put it in the Q&A, please. I’m sure you have many questions for our experts here. While you’re doing that, I’m just looking at the participant list. If not, I’m going to start calling on people. It’s something I do all the time. It’s the professor side of me that does that. Well, while people decide what they’re going to ask, Tat, so since I said Ela said that your newsroom is actually one that’s been trained in, and that’s actually quite good, how much support they give you? And what sort of support? I mean, if something costs money, did they pay for it, for example? You know, have they—you know, have they given—paid for password manager? Have they given you, you know? And what’s the—what’s the support they gave you, and what do you wish they gave you? BELLAMY-WALKER: That’s a really good question. Well, I would say, maybe the first thing that they had—like, you know, they sent over the different, like, resources, and, you know, for, like, online harassment. And also, they recommended that I take out my, like, email address from the bio online. Since so many of my—since so many of the messages were coming to my email. But in terms of, like, money towards, you know, getting, like, a password manager or, you know, trying to delete some of these, you know, information about me from the internet, I was not provided, like, support with that. And I think just, like, in the future, I—you know, at the time of these stories I was very new to my position. And I think it’s, like, you know, it would be great if, like, news organizations, like, give more trainings on online, like, risk. I think that would be very, like, helpful. Like, alongside having a guide, like a training as well, for, like, new employees. I think that would be very helpful. ROBBINS: So sort of basic onboarding? I mean, this should be a required—a required part of—a required part of it. Ela, are there newsrooms that are doing that now? They've just sort of included this as part of the onboarding process. STAPLEY: Well, ideally, it would be included in the onboarding process. A lot of newsrooms we’ve worked with have included it within the onboarding manual. But obviously, training is money. Newsrooms are short on money these days. So it can be quite difficult. And also, if there’s a high staff turnover, one of the issues we’ve noticed is you can create the best practice, you can train journalists, but journalists leave. New journalists come. Who’s staying on top of that and managing that? And that’s why it’s important to get HR involved from the beginning because maybe HR—in some newsrooms, HR is the editor and also the IT person. So it really depends on the size of the newsroom and how much support they can offer, in terms of financially as well, how much support they can offer. Delete Me is expensive if you add it up for many journalists within your newsroom, or other data broker removal services. One Password actually does free accounts for journalists. So I would recommend that you have a look at that. They have One Password for journalism. And you can—and you can sign up for that. But obviously, it costs money. You know, and there are bigger issues newsrooms need to think about as well. So one of the things we encourage them to think about is how much support can you offer, and also to be honest about that support. So what you don’t want is a journalist who’s been doxed, their home addresses all over the internet, they’ve had to move out, but they find out their newsroom can’t pay for that. So where did they go? Do they still have to work during that period, for example? So getting newsrooms to think through these issues in advance is really helpful for the newsroom because then they can say, look, if this happens we are able to provide this for this amount of time, and after that, you know, we can do this, this, and this. Some newsrooms can't afford to pay for journalists to move out of their home because their budget is too small, but maybe they can offer time off, for example, paid time off, or mental health support through insurance. Maybe they can start to build community networks in the newsroom. This is increasingly more important, as newsrooms—we were speaking about this earlier—are more remote. So people aren't coming into the office so much. So you're not connected to people as much. There's no kind of chatting to people around the water cooler like they used to. So, you know, this kind of self—almost kind of exchanging information between journalists around, like, how to protect against issues or which issues are causing more conflict or—could be tricky. It may not be being picked up, on especially for younger journalists coming into the newsroom because, you know, they're just starting out on their journalism career. They don't have years of experience behind them. And they can often be vulnerable to attacks and, you know, I, on several occasions, spoke to editors at newsrooms, small local newsrooms, who had sent out, you know, like, a young reporter or just a reporter—junior reporter to cover a protest, which was actually a far-right, or alt-right march. And then that journalists would be doxed. And the journalists were completely unprepared for that. The newsroom was completely unprepared for that. Because they hadn’t assessed the risk. They hadn’t seen what the risk, and they wouldn’t have known that doxing was a very common tactic used by these groups. So planning for that in advance is really important. That’s why risk assessment can be really great—a great tool. Getting newsrooms to think through risk assessment processes. ROBBINS: So we have two questions. One from someone named Theo. I’m not sure, I don’t have a list in front of me. Do you recommend any apps for password managers? This person says: I went to a seminar that suggested LastPass, and then LastPass had its data stolen a few months later. This has always made me actually nervous about password managers. I sort of wondered how secure they are. It seems to me every time I get my snail mail I’m getting another warning that, like, something else of mine has been hacked. And we’re going to give you a year of, you know, protection. Are there any of these apps—are they actually secure? STAPLEY: So, one of the things about digital security and safety that journalists really hate is that it’s a changing environment. So, something that was safe, you know, yesterday, isn’t safe today. And the reason for this is, is that tech changes, vulnerabilities become open. Hackers attack. Governments and other groups are always looking for ways to attack and find access. And people in my industry are always looking for ways to protect. So it’s always in a kind of constant change, which is frustrating for journalists because they just want to say use this tool, it’ll work forever, and it’ll be fine. And I’m afraid digital safety is not like that. So nothing you use that is connected to the internet in any shape or form is 100 percent safe, or any device. And the reason for that is, is there is always a possibility that there is a vulnerability that in some area that could be leveraged. So what you’re looking for is really for journalists to stay up to date with the latest tech information. And you’re all journalists. So this, you know, it’s just research. So it should be pretty OK for you to do. The best way to do it is just to sign up to the tech section of a big newspaper, national newspaper, and just get it coming into your inbox. And you’ll just stay up on, like, who’s buying who, what data breaches have there been, who’s been hacked, what hacking groups are out there. You don’t have to investigate in depth. You just have to have a general read of what’s happening in the global sphere around this issue. I think Elon Musk's buyout of Twitter, for example, is a very good example of, you know, what happens when a tech tool that we all depend on changes hands, right? I know journalists who built their entire careers on Twitter and are now just really floundering because it's so difficult to access audiences and get the information. So in order to answer your question, no, nothing is 100 percent safe. But if you're looking to use something, there are certain things that you should look for. Like, who owns this tool? What are they doing with your data? And how are they storing that data? So in terms of password managers, for example, password managers are currently the industry best practice for passwords for the majority of people. There are certain groups within that who may be advised not to use them, most of them are the more high-risk ones. So they—password managers are keeping your passwords in encrypted form on their servers. What does that mean? If someone hacks a password manager, they can't gain access to those passwords. In terms of LastPass, what we saw was security breaches but no actual passwords being accessed. But the fact that they'd have several security breaches made people very unsettled. And, you know, people have been migrating off LastPass, basically. It means their general security ethos may not be as secure as people want. So, you know, you have to move elsewhere. And that is for any tech tool that you use. So now maybe people aren't using Twitter; they’re moving over to LinkedIn. You may be using iMessage one day but may have to migrate over to WhatsApp another. So having many options in play is always—is always good as well. So don’t just rely on one thing and expect it to work forever in the world of tech. Generally, it doesn’t. ROBBINS: We are we have—so, Theo, I’m just going to answer your question really quickly, because that’s one that I actually know something about. This is—Theo asked whether there’s any suggestions—and Theo, I believe, is Theo Greenly, senior reporter at KUCB. Suggestions when finding/choosing a fixer on a reporting trip, especially abroad? Questions to ask or things to look for when initially assessing risk before a trip. I would just say, for finding a fixer, find somebody who’s worked in that country already and ask their advice. That’s the only way you can do it. It’s just—the same way if you’re going down a road and whether or not you think there are mines on that road, ask people who know. There’s, like, no—you just have to rely on the kindness of people who’ve already worked in that environment. And it’s just—that’s what I did for years and years and years working abroad, is that I always relied on people who knew more. I can tell you the first trip I had was in Haiti. The overthrow of Baby Doc. Yes, I’m that old. And I was flipping out. And I called my husband, a very experienced foreign correspondent. And he said to me, find Alfonso Chardy from the Miami Herald , and do everything that he’s already doing. He was completely right. And that’s how I learned how to do it. So that’s—you know, there’s no secret here. It’s just find more experienced reporters. And they’re usually really kind, and they’re really, really helpful. So there’s a question from—is it Steve Doyle? StDoyle. What suggestions do you have for journalists facing physical threats? How should journalists be prepared for that? Ela, Tat? I don’t know if you—this is focused on digital, but do you guys—have you heard of any training? I know that when my reporters at the Journal went overseas, they had a lot of training on security, particularly the ones who went to Afghanistan and Iraq. And we had to pay for it. We went to security companies that trained them. Have you heard anything about people being trained for physical protection in the United States? STAPLEY: Yeah, the IWMF is currently actually on their U.S. safety tour. So they’re visiting states and training them in physical and digital safety. So you can go to the website and check that out. So they do do also the HEFAT training as well. I’m not a physical security expert, so I can’t really speak to that. But, yes, there are organizations that offer this. But there’s a lot more that are obviously paid for than are actually free. But, yes, there are organizations out there that do offer this type of training, press freedom organizations. ROBBINS: Tat, have you done any training on physical security? Because you’re out and about in the community all the time. BELLAMY-WALKER: Hmm. Yeah. So I would also echo the IWMF’s HEFAT training. During the training, like, we learned how to, like, you know, if we’re in a protest and it gets extremely, like, hostile, we learned how to navigate ourselves, like, out of that situation. We learned how to navigate—if there’s a mass shooting, like, what to do. If—you know, if we’re, you know, getting kidnapped or something, we learned how to navigate that situation. So I would definitely recommend IWMF’s HEFAT training has something for folks to use to learn how to navigate these different physical threats that can come up in the field. ROBBINS: Great. Well, we will share a link to that as well when we send out our follow up—our follow-up emails. That's great to know, that that's available. Also never go in the center of a crowd. Hug the buildings. You don't want to get trampled. It's another thing my husband taught me in the early days. These are all really useful things. Question: For a reporter who covers a remote minority community in a news desert, she must be visible on social media for sources to reach her. At the same time, she’s getting harassed/doxed. We provided Delete Me, but she still needs to be findable. Best practices? That was—I mean, it seems to me, sort of that’s the great paradox here. You know, how can you be visible so people can find you, but at the same time you don’t want to get people—the wrong people finding you? How do we balance that? STAPLEY: Yeah. And, like I said, it’s different for each journalist. Depends on the degree of harassment, and how comfortable, and who’s harassing you as well. So generally, if the people who live close to you are harassing you, the physical threat level is higher. So that’s something to be mindful of. So, you know, if you’re—some of the most challenging cases are journalists who report on the communities that they are living in, and those communities are hostile to them in some form. And it can be very, very difficult for them to stay safe, because they also know where you live. Because, you know, they know your aunt or whoever, like they live three doors down. But I think really it's then about putting best practices in place. So having a plan for what if this happens, what will we do as a newsroom to support this journalist? And maybe seeing—asking the journalist what they feel that they need. So when it comes to harassment on social media, I'm afraid—a lot of responsibility for managing that harassment should come from the platforms, but it doesn't. And there are very few practices now in place, especially, you know, what we've seen with X, or what was previously Twitter. You know, the security there is not as efficient as it once was. I think I could say that. So you can be reporting things, but nothing's happening. Or they say that it adheres to their community guidelines. Often we hear that from Facebook, for example, or Instagram. One thing you should know, if you’re reporting harassment, is you should read the community guidelines and see how that harassment—you need—you need to parrot the same language back to them. So you need to show them how the harassment is violating their community standards, and just use the same words in your—in your report. And document it. So keep a spreadsheet of who—what platform it happened on, take a screenshot of the abuse. Don’t just have the URL, because people delete it. So make sure you have the handle name, the date, the time, et cetera. And the harassment, the platform it happened on, whether you reported it, who you reported it to, have you heard back from them. Why would you document it? Well, it really depends. Maybe, you know, it’s just personal, so you can track it. Maybe it’s for you to show editors. Maybe it’s to take to the authorities. But that’s not always appropriate for everybody. You may or may not want to document—and you can’t document everything. So you’re just looking for threat to life there, I would say. And it can be helpful to get—I know Tat mentioned this—to have, like, a community of people who can help you with that. So in the case of this journalist, like, what’s their external support network like? Are there other journalists that journalists can be in contact with? What can you offer that journalist in terms of support? So does that journalist need time every week to kind of document this during work hours so she doesn’t—or, he—doesn’t have to spend their time doing it on the weekend? Do they need access to mental health provision? Do they need an IT team? So it sounds like it's a small outlet, you probably don't have—maybe have an IT team? Or, you know, the owner's probably the IT person. That's normally how that works. So what can you do there to make sure their accounts are secure, and make sure they know that they don't always have to be online? So one of the most important things for journalists is for people to contact them. But if you're on a device all the time, and that device is just blowing up with hatred, it can be quite useful to have a different device, a different phone number that you use for personal use. And that, you know, maybe you don't work on the weekend, you switch your work phone off so you don't have to be reading all this abuse. I know switching the phone off for a journalist is like never going to happen, but in some cases it could be useful. If you’re in the middle of a sustained, like, vicious attack, you know, just having your phone explode with calls, messages, emails, all just coming at you 24/7, is really not great. And it really impedes your ability to do work as well. So, you know, putting a bit of separation there, and helping that journalist—letting that journalist know that you support that journalist doing that is really helpful. That’s a really good, important step for a newsroom to do, kind of giving them that support. ROBBINS: So one of the things that Ela said, and, Tat, I want to ask you about it. Ela said something about knowing something about who your attacker is, because then you might know more about whether they just—they’re just going to dox you—I don’t mean “just”—but if they’re going to focus on doxing, versus they maybe want to hack your personal accounts, or they want to go after your aunt, or they may actually come to your newsroom and physically threaten you. That people have patterns of their attacks. When you were getting attacked over the story you were doing about drag laws, did you have a sense—did you know who was attacking you? Did you research it? BELLAMY-WALKER: Yeah, I did. At first, it just seemed like it was just, like, random folks, you know, from, you know, the internet. But I started to see that there was definitely this, like, conservative Facebook page. Like, everyone from that conservative Facebook page. They were all definitely emailing me. You know, I’m definitely maybe not 100 percent sure about that, but it seemed like the Facebook page took the harassment to a whole different level, especially because they included, like, where I work. They, you know, had spoke about like a tweet that I had wrote about, like, the journalism industry in general, in terms of diversity. So many of the attacks started to heighten from the Facebook page, and then the article that was written about me. And so for me, it’s really important for me to, you know, check, you know, what is being, you know, written about me through either Google searches or I will search Facebook, and that’s how I came across this, you know, conservative Facebook page. I think they were called, like, the Whiskey Cowboys, or something like that. Yeah, yeah. So that’s how I look at—that’s how I came across them. It was after I had done, like, a search of my name in Facebook. And if I had not done that search of my name, I would not have realized, like, why it was becoming so intense. Because before then, I did—you know, definitely I get some emails here and there, but never something as targeted as it was. I’m like, whoa, like, these are getting, like, really, really personal. And then with the Facebook page, it was very, very personal attacks on me. ROBBINS: So, Ela, I think my final question to you is, sometimes a Facebook page isn’t necessarily who we think it is. I mean, it could be the Iranians. It could be somebody in New Jersey. It’s not—I mean, there’s Donald Trump, it’s some 300-pound guy in a basement in Newark, New Jersey. OK, well, that’s a story for another day. Do you guys or does someone else have—you know, has done more forensic research so that if we’re getting—we’re getting attacked we can say: That looks like X group, and we know that they tend to mainly focus on doxing, or you probably should be more aware that they’re going to go after your financial resources? Is there some sort of a guide for particular groups in the way they do their work? STAPLEY: Not a guide, as such. But, yes, there are journalists who’ve researched the people who have harassed them. And it also makes very good stories—I know journalists who have written good stories about that. And, obviously, there are tech professionals, IT professionals, who can also look into that. They can study things like IP addresses and things. And it helps build up a picture of who the attackers are. But I think here, the important thing is if you are writing on a particular story—on a particular topic or on a particular region of the world, knowing who’s active online with regards to that topic and regards to that region of the world, and what they can do in terms of their tech capacity, is important. Ideally, before anything happens, so that you can put steps in place. ROBBINS: But how would I, if I work at a medium-sized or small newspaper—you know, where would I turn for help for that sort of risk assessment, as I’m launching into that? You know, how would I know that if I’m going to go down this road that I might draw the ire of X, Y, or Z that has this capacity? Where would I look for that? STAPLEY: Yeah, speaking to other reporters who cover the same beat is very helpful, whether in your state or just, like, if you have reporters in other areas of the country or in other countries. You know, if you’re covering international news, like, speaking to them and finding out if they—what digital threats they’ve faced is a really useful step. So connecting to that network, like we talked about fixers in different countries. Like, getting a feel for it. But ideally, this should come from the newsroom themselves. So, you know, ideally, newsrooms should be proactive about doing risk assessments. And ideally, they should train managers. They should train editors on this. So a lot of responsibility does kind of fall to the editor, but a lot of them haven’t been trained in how to, like, roll out a risk assessment appropriately. And so getting newsrooms to really be proactive about this, training their editors, and being—you know, looking at the risk assessments, putting them in front of people, and getting them to—and asking them to fill them out. Because the risk assessment really is about mitigating risk. It’s getting you thinking, what are the risks? How can you reduce them in a way that makes it safer for you to go about your daily life, but also to continue reporting? Which at the end of the day, is what all journalists want to do. ROBBINS: Has anybody—like Pew or anybody else—brought together sort of a compendium of, you know, significant online attacks that journalists have suffered, sort of organized by topic or something? That would be really useful. STAPLEY: Yeah, there’s a number of organizations that have published on this. There’s been a lot of academic research done. The ICFJ and UNESCO did one, The Chilling it’s called. That was a global look, against women journalists, and involved a lot of case studies. We have our online violence response hub—which Tat mentioned earlier, which I’m very pleased to know that Tat was using—which is a one-stop shop for all things online harassment-related. And there you will find the latest research. So you can go there and search for academic research, but it also has, like, digital safety guides, guidance for newsrooms, as well as for journalists and for those who want to support journalists to better protect themselves. ROBBINS: That’s great. Ela, Tat, thank you both for this. I’m going to turn it back to Irina. We’re going to push out these resources. And this has just been—I’m fascinated. This has been a great conversation. Thank you so much, both of you. STAPLEY: Thank you. FASKIANOS: Yes. And I echo that. Ela Stapley and Tat Bellamy-Walker, and, of course, Carla Anne Robbins, thank you very much for this conversation. We will send out the resources and the link to this webinar and transcript. As always, we encourage you to visit CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org for the latest developments and analysis on international trends and how they are affecting the United States. And of course, you can email us to share suggestions for future webinars by sending an email to [email protected] . So thank you for being with us today. And thanks to all of you for your time. We appreciate it. ROBBINS: Ela and Tat, thank you for the work you do. Thanks, Irina. (END) Webinar by Tat Bellamy-Walker, Ela Stapley and Irina A. Faskianos February 13, 2024 Local Journalists Webinars
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Watch CBS News

Supreme Court to hear free speech case over government pressure on social media sites to remove content

By Melissa Quinn

Updated on: March 17, 2024 / 8:42 AM EDT / CBS News

Washington — The Supreme Court on Monday will be weighing whether the government crossed a constitutional line into censorship of lawful speech when it pressured social media platforms to take down content it deemed misleading.

The case poses a significant test of the First Amendment's free speech protections in the digital age and stems from the Biden administration's efforts to pressure social media platforms to remove content that it said spread falsehoods about the COVID-19 pandemic and the 2020 presidential election . 

The Supreme Court is set to consider at what point the federal government's attempts to protect against misinformation on social media cross into censorship of speech that is constitutionally protected.

"The key free speech issue is how far can the government go in verbally arm-twisting private speech intermediaries to remove speech before that constitutes a First Amendment violation or state action," said Clay Calvert, a law professor at the University of Florida who is an expert in the First Amendment.

In addition to the social media case, known as Murthy v. Missouri, the Supreme Court on Monday will also hear a dispute over whether a New York financial regulator violated the National Rifle Association's free speech rights when she pressured banks and insurance companies in the state to sever ties with the gun rights group.

At the core of both cases is so-called jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech. In the first dispute, the intermediaries are the platforms, and in the second case, the intermediaries are insurance companies.

"In both cases, the government doesn't actually have the power to regulate speech or to decide whether the NRA can access banking institutions or not," said Will Duffield, a policy analyst at the libertarian Cato Institute, adding that "the government is seemingly gaining, gathering, usurping new powers by leaning on these intermediaries in order to do things that it isn't authorized to do itself." 

The social media case

The first legal battle before the court arose out of the Biden administration's efforts to pressure platforms including Twitter, now known as X, YouTube and Facebook, to take down posts about COVID-19 and the 2020 election that it believed spread misinformation.

The dispute was brought by five social media users and two states, Louisiana and Missouri, who claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.

The challengers claimed that at the heart of the legal battle lies a "massive, sprawling federal 'Censorship Enterprise'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.

A federal district judge in Louisiana found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. U.S. District Judge Terry Doughty limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.

The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of the district court's order but said federal employees could not "coerce or significantly encourage" a platform's content-moderation decisions.

The Justice Department appealed to the Supreme Court, and the justices agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court's order limiting Biden administration officials' contact with social media companies.

In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free "to inform, to persuade, and to criticize."

"The court imposed unprecedented limits on the ability of the president's closest aides to speak about matters of public concern, on the FBI's ability to address threats to the nation's security, and on CDC's ability to relay public-health information," Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, said.

She argued that senior Biden administration officials were using the bully pulpit to push social media companies to address falsehoods on their platforms, which has never been a free speech violation. As long as the government is seeking to inform and persuade, and not compel, Prelogar wrote, its speech does not run afoul of the First Amendment.

"Influence is also the natural result of successful efforts to inform, to persuade, or to criticize," Prelogar wrote. "That the platforms often acted in response to the government's communications thus does not remotely show that those communications were coercive."

But state officials behind the challenge told the court that accepting the Justice Department's argument would make the First Amendment "the easiest right to violate."

White House officials, they said, frequently coupled private demands for social media companies to remove posts with public references to adverse consequences they could initiate, such as antitrust reforms or changes to the law that protect platforms from civil liability over content posted by third parties.

"By silencing speakers and entire viewpoints across social-media platforms, defendants systematically injure plaintiffs' ability to participate in free online discourse," state officials from Louisiana and Missouri wrote .

The legal fight is one of five that the justices are weighing in their current term that stand at the intersection of the right to free speech and social media. But in this case, the key question for the justices is whether the Biden administration was engaging in permissible persuasion or unlawful coercion when it urged social media platforms to suppress content. 

"It's going to have to define those rules about what speech is allowed and what's not, how far can the government go before it violates the First Amendment rights of the individuals who are posting on the speech intermediaries," Calvert said.

The Biden administration has said it is vital for federal officials to be able to communicate with social media companies on issues of public consequence, and using strong or critical language does not mean it's crossing a constitutional line. 

But David Greene, civil liberties director at the Electronic Frontier Foundation, said U.S. officials will not lose their ability to combat misinformation or disinformation. The government, though, has a responsibility to ensure people don't perceive it as forcing their hands, he said.

"There are two main issues, and that is what do courts look at to determine whether and at what point a government crosses the line from voicing its opinion about how a social media platform should treat a specific post to unconstitutionally coercing the censorship, the negative moderation of that post," he said. "There's no disagreement that there is a point at which it becomes unconstitutional, but what the parties disagree on is what is that line and what is the appropriate analysis for setting that line, what factors to consider?"

Any cases that present close calls should go against the government, Greene said, because officials are "best placed to moderate their behavior to make sure it's not interpreted as coercive."

The NRA's legal battle

In the second case, the court will consider whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.

Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.

In April 2018, after the Parkland shooting, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.

Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies that worked with the NRA. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents. 

The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.

A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."

But a federal appeals court disagreed and determined that the guidance letters and a press release couldn't "reasonably be construed as being unconstitutionally threatening or coercive," because they "were written in an even-handed, nonthreatening tone" and used words intended to persuade, not intimidate.

The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group's free speech rights when she urged financial entities to sever their ties with it.

"Allowing unpopular speech to form the basis for adverse regulatory action under the guise of 'reputational risk,' as Vullo attempted here, would gut a core pillar of the First Amendment," the group, which is represented in part by the American Civil Liberties Union, told the court in a filing .

The NRA argued that Vullo "openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization."

"In the main, she succeeded," the organization wrote. "But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment."

Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.

"Accepting the NRA's arguments would set an exceptionally dangerous precedent," lawyers for the state wrote in a Supreme Court brief. "The NRA's arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations."

The NRA, they claimed, is asking the Supreme Court to give it "favored status because it espouses a controversial view," and the group has never claimed that it was unable to exercise its free speech rights.

A decision from the Supreme Court in both cases is expected by the end of June.

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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The Morning

The internet and the first amendment.

We explore the upcoming legal rulings that will shape online life.

By David McCabe

I cover technology policy.

Here is a puzzle at the center of online life: How should we balance freedom of speech with the flood of slanderous statements, extremist manifestoes and conspiracy theories that proliferate on the internet? The United States decided decades ago to let private companies solve that quandary themselves. The Supreme Court made this position official in three major rulings in the 1990s and early 2000s.

But lawmakers aren’t sure about this arrangement, now that giant online platforms are the new town square. The left says Facebook, YouTube, TikTok and the rest should take more content down, especially hate speech and disinformation. The right says the companies, which removed posts about Covid and the 2020 election, shouldn’t set the rules for discussions about politics and culture.

Now a series of federal court cases will address these questions. Supreme Court justices will decide a few in the next month or two. In today’s newsletter, I’ll explain how those cases could change the way the First Amendment functions in the internet era.

The decisions

Courts have faced six broad questions about online speech. The Supreme Court has ruled on two of them.

When can social media sites be sued over what users post? Rarely. Two Supreme Court rulings last year kept protections in place for websites from most lawsuits related to content posted by users. Relatives of victims of terrorist attacks had argued that Google and Twitter should be legally responsible for content posted by the Islamic State. The justices disagreed.

Can government officials block constituents on social media? Sometimes. The Supreme Court ruled in March that public officials can’t stop a constituent from commenting on their posts if they are acting in their role as political officeholders.

The questions

Four other philosophical questions are still in progress.

Can the government force social media sites to host political content? Twitter, YouTube and Facebook suspended Donald Trump in 2021 after the Jan. 6 riot. Then Florida and Texas passed laws designed to restrict such moves. The Supreme Court will soon rule on those laws, and the justices appeared skeptical of them during oral arguments in February, my colleague Adam Liptak reported.

When can the United States push social media sites to remove content? The government prodded social media services to take down certain posts related to Covid and elections. Missouri, Louisiana and five individuals argued that’s a violation of the First Amendment. They say the government used private companies to stifle a specific viewpoint. The Supreme Court seemed wary of the lawsuit in March. The justices’ skepticism of conservatives’ argument is a sign of how complex it is to draw boundaries in this area of the law.

Can the government restrict access to online pornography? Texas passed a law last year that requires adult sites to check the age of their visitors. Parents can sue sites if the sites fail to do so and their child views pornography. If the law stands, adults will need to reveal their identity to pornography sites instead of remaining anonymous. The sites say this puts a barrier between adults and speech they have a right to view under the Constitution. The case is now in federal appeals court.

Can the government ban a foreign-owned social media platform? President Biden signed a law in April that will ban TikTok unless it is sold by its Chinese parent company, citing national security. TikTok says the measure curtails free speech rights — both its own and its users’. Federal courts are planning to hear the case this year. If they uphold the law, it will affirm the federal government’s right to eliminate a platform for speech in the national interest. If judges strike it down, it may allow news and social media sites to serve Americans even when they are owned by a company from an enemy nation.

What this means for users

With this many kinds of cases, the range of outcomes is vast. If the courts decide the status quo is wrong, internet platforms might limit what you can post — or take down more of it — just to be sure they are complying with the laws.

Another possibility: The courts could decide that they got this question right the first time they considered it, 30 years ago. Free speech online might not change much. But private companies would now formally be entrenched as its arbiter.

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YaleGlobal Online

Us free speech vs china’s censorship.

DURHAM, UNITED KINGDOM: A Sino-US trade war emerges every few years, and Sino-US trade negotiations have reached a critical juncture yet again. For more than a century, trade talks have coalesced around insufficient protection for US intellectual works in China, including piracy, and this time is no different.

Trade friction between the two nations originated toward the end of Qing Dynasty, China’s last feudal government, and persists today. An underlying factor is the Chinese government’s rigorous censorship of imported cultural products, an irreconcilable challenge to free speech in the United States. Since 1791, the First Amendment of the US Constitution protects free speech. Over the last century, the US Supreme Court has regularly privileged the protection of free speech against other rights and interests, including privacy and national security. This is a judgment value.

The First Amendment is also geared toward ensuring equitable conflict between individual speech and government power. The influential case of New York Times Co. vs. United States in the 1970s clarifies a fundamental judicial principle: The so-called “state secret” may not erode free speech. Floyd Abrams, counsel to the plaintiff in that case, referred to the “anticensorial” spirit as “the soul of the First Amendment” – it forbids banning anyone from criticizing the government.

Based on the same idea, the US Constitution defines copyright as an instrument to “promote Science and useful Arts.” The US Supreme Court used the metaphor “engine of free expression” to manifest the goal of copyright protection: Only if authors receive reasonable remuneration from the free market for their intellectual works can they secure independent status, dignity and free speech. For this reason, publication and circulation of books and audiovisual commodities are not only an integral part of cultural supply and consumption, but also, more significantly, a special trade item encapsulating the spirit and value of free speech in the United States.

By contrast, analysts suggest that copyright assumed its primitive shape in China as early as the 10th century, though this protection was equivalent to censorship. Printing technology emerged at that time, and the government aimed to prevent the free flow of information. The words “unauthorized copies will be prosecuted” pointed to compulsory permission granted by the government rather than by authors. After Western powers forcefully knocked open the closed doors of the Qing government to foreign trade, the “copyright” system guided by government censorship confronted a major challenge from the US trade of copies touting the right of free speech.

In Sino-US trade talks at the end of the 19th century, the Qing government agreed to copyright protection for books from US publishers on the condition that the government would censor politically sensitive content beforehand. The Qing government also agreed to protect the copyright of Japanese publishers, but only if Japan helped ban publications in Japan that might threaten Qing rule. That ban targeted Sun Yatsen, the most notable anti-Qing government leader who had sought refuge in Japan and later became the founding father of the Republic of China.

Although these trade talks yielded some superficial benefits, with the Qing government agreeing to some copyright protection for US publishers, piracy remained an enduring practice. Only during the first three decades of the People’s Republic was rampant piracy constrained, because the Communist government generally forbid import of overseas publications. Moreover, Chinese authors could not acquire any substantial copyright: As members of the “proletariat,” they would be condemned for earning more than others merely by “playing with their pens.” Intellectuals received limited compensation for their “labor,” and government policies suppressed creativity and free speech.

Deng Xiaoping’s opening the economy and the establishment of Sino-US diplomatic relations helped resurrect trade talks. The 1980s witnessed a relatively relaxed policy of spiritual development in China, so that publications from the United States, even pirated works, contributed to the dissemination of free ideas. However, US publishers suffered an inestimable loss from a tremendous unregulated cultural market that emerged. The US government resumed trade negotiations with the Chinese government, and the first step was to revive the conditions used at the end of the Qing Dynasty: The Chinese government must provide legal copyright protection.

China catered to the request after the Tiananmen Democratic Movement. In 1991, China implemented its first copyright code. Still, the prerequisite for intellectual works to obtain copyright protection was to survive government censorship. Many clever authors benefited from this copyright system: Yu Qiuyu, a bestselling author whose itinerary essays were criticized as “cultural lipsticks” for their absence of political topics, became China’s wealthiest writer due to royalties. Still, the desire for information resulted in sustained piracy.

In the 1990s, the United States launched its “trade war” against China with a focus on intellectual property. Both governments produced a list of punitive measures that corresponded to anticipated claims. The Special 301 clause in the US Trade Act turned into an invincible weapon with China eventually signing a memorandum to agree to intensify copyright enforcement and crack down on piracy. However, that turned out to be a ploy for China to win US endorsement of its membership in the World Trade Organization. China soon amended its copyright law to empower the government to crack down on piracy through various campaigns. The goal was, apparently, to censor politically unqualified cultural products, as made clear in government campaigns to “purify the internet” in the name of eradicating pornography and illegal publications.

Most countries manage general tensions between copyright and free speech through the free market: The supply-demand relationship predetermined by prices of cultural products affects authorial and public interests – hence, freedom of speech and freedom of information, respectively. In China, however, the government regulates copyright by censorship to realize its policy goal of controlling free speech. China’s nonmarket approach could undermine the interests of foreign investors and benefit illegal publishers. In 2016, Apple Inc. eliminated New York Times apps to comply with Chinese censorship, although Chinese retailers sold identical or similar products.

Since the US government greenlighted China’s accession to the WTO in 2001, Sino-US trade friction and talks have converged at the debate between free speech and censorship. Former President Bill Clinton warned China against developing its censorship regime in the age of the internet, comparing that task to “nailing Jell-O to the wall.” Nevertheless, China adapted to international trade rules. In the Sino-US IP dispute at the WTO, the Bush administration brought China’s censorship in copyright law into question by challenging its harmful effects on global trade. Eventually, the WTO ran out of bullets: Censorship did not contravene international trade law because the Berne Convention explicitly allows members to ban “harmful publications” that undermine “public order.”

The Obama administration boosted Sino–US trade talks, informed by a debate over values, and freedom of information drafted into the Trans-Pacific Partnership as a fundamental principle. In 2016, a US Trade Representative report outlined China’s Great Firewall as a serious “trade barrier.” Recently, the US-Mexico-Canada Agreement precludes US trade partners from making deals with countries denied “market economy status,” even though the Trump administration withdrew the United States from the TPP. Obviously, the Chinese government’s attempt to strangle free speech through distorted copyright laws provides strong evidence to the US government for accusing China of rendering a nonfree-market environment for Sino-US copyright trade.

Intellectual property protection haunted by piracy in China remains a key problem in the Sino-US trade war. Many governments and businesses consider China’s supposed inability to eradicate piracy unfathomable despite incessant promises for a crackdown. The answer is probably as follows: Censorship is an “engine” that sparks public curiosity and acts as an impetus for publishers to pirate banned works. Such an entrenched system of suffocating the free flow of ideas is bound to buttress the legitimacy of piracy in China and generate conflict with any tangible or intangible products carrying free speech.

Ge Chen is assistant professor in Chinese Law and co-director of the Centre for Chinese Law and Policies at the Durham Law School. He is the author of  Copyright and International Negotiations: An Engine of Free Expression in China? – a monograph published by Cambridge University Press in 2017. The book was featured in  Harvard Law Review and presented at Yale Law School’s 2017 Freedom of Expression Scholars Conference under the auspices of the Abrams Travel Fellowship of the YLS Information Society Project. Dr. Chen has held academic and research positions in Oxford, Cambridge and Göttingen, and was a senior legal expert at the Mercator Institute for China Studies. He has advised the Chinese and European governments on a variety of legal projects under the Sino-EU-Dialogue of the State of Rule of Law.

This article was posted November 30, 2018.

This article was updated December 2, 2018

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An Attack on Free Speech at Harvard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Sen. Eric Schmitt, R-Mo., demands accountability from the Global Disinformation Index over alleged censorship of conservative news sites. Pictured: Schmitt walks to a luncheon Feb. 27 with fellow Senate Republicans in the Capitol. (Photo: Anna Moneymaker/Getty Images)

Sen. Eric Schmitt, R-Mo., demanded Thursday that the Global Disinformation Index provide specifics on its efforts to blacklist conservative news sites, in a letter exclusively obtained by the Daily Caller News Foundation.

GDI, a nonprofit based in the United Kingdom, compiles lists of sites—such as conservative media outlets—that it deems as spreading “disinformation” and shares these lists with advertising firms to demonetize the outlets, the Washington Examiner first  reported .

Despite describing itself as “nonpolitical,” the Global Disinformation Index consistently assigns higher ratings of disinformation risk to conservative media while rating liberal outlets as safer in its “ Disinformation Risk Assessment .”

Schmitt expressed concern in the letter about GDI’s previously receiving funds from the State Department’s Global Engagement Center, which the Daily Caller News Foundation first  reported . He asked the organization to answer how it handles “disinformation” and to provide information on partnerships and funding sources.

“Cheap fake” is the new “Russian disinformation” The Left will do anything to hide the truth. — Eric Schmitt (@Eric_Schmitt) June 19, 2024

“The Global Disinformation Index has masqueraded as a source of truth and accountability for far too long, all while trampling freedom of the press and demonetizing conservative news outlets using taxpayer dollars,” Schmitt said.

“This is yet another example in a long list of examples of the Biden administration using taxpayer dollars to censor information and sources they don’t agree with,” the Missouri Republican added. I’m proud to have led numerous efforts to expose the Biden administration’s censorship industrial complex, and I will continue to fight to protect freedom of speech and combat government-funded censors.”

The Global Disinformation Index’s mission of “disrupting the business model of disinformation” has caused substantial financial damage to the media outlets it targets, the Washington Examiner reported.

GDI publicly rated National Public Radio and The New York Times as “minimum” risk level, The Washington Post and BuzzFeed as “low” risk level, the New York Post and The Daily Wire as “high” risk level, and The Federalist and Newsmax as “maximum” risk level.

The organization also produces confidential “exclusion lists” that it sells to online advertising companies for the purpose of demonetizing sites, the Examiner reported.

Schmitt asked for GDI to detail its processes for determining “disinformation” and how it makes sure it is “neutral and independent,” as well as details about GDI personnel who work on the “exclusion lists.” He also asked GDI to “provide a list of any factors that contribute to the total score of an individual media outlet’s risk rating.”

Moreover, the senator asked for details about the Global Disinformation Index’s research partners and funding, including from government entities

Through its “exclusion lists,” GDI “has operationalized a government-funded, Orwellian truth test—the ‘disinformation risk rating’ of news organizations—led by a censorship team of ‘trained intelligence analysts,’” Schmitt writes, adding:

This ‘risk assessment’ assigns an arbitrary risk scale seemingly based on a nebulous set of left-leaning values. GDI then disseminates this rating to the largest advertising companies, who serve as gatekeepers for advertising across all online marketplaces, search engines, and social media platforms, pressuring ad servicers to throttle advertising on any outlet or website labeled as ‘high risk.’

“Not surprisingly, reports show that your apparent ‘unbiased and non-political’ risk scale has led to major outlets with conservative editorial philosophies,” Schmitt tells GDI in the letter.

The state of Texas, the New Civil Liberties Alliance, The Federalist, and The Daily Wire sued  the State Department in December, arguing that the federal agency financed organizations that allegedly seek to suppress conservative speech online.

Schmitt, when he was Missouri’s attorney general, filed a lawsuit challenging the Biden administration over its attempts to influence social media firms to take down conservative-leaning content, as well as information about COVID-19 vaccines. The Supreme Court currently is considering the case.

“As an elected representative of the people of Missouri, it is my duty to shine a light on government and quasi-government actors seeking to silence and undermine citizens’ ability to exercise their right to view and express opinions of their choosing,” Schmitt wrote to GDI. “Frankly put, no single organization or person should have the ability to act as the arbiter of truth.”

The Global Disinformation Index, the State Department, and its Global Engagement Center did not immediately respond to a request for comment.

Originally published by the Daily Caller News Foundation

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Elon Musk: telling advertisers to "go f**k yourself" was about freedom of speech

• Thread starter midian182
• Start date Thursday at 9:42 AM

Posts: 9,895   +125

• Thursday at 9:42 AM

Facepalm: Elon Musk has backtracked on a statement he made last year telling advertisers who were threatening to pull their ads from X to "go f**k yourself." The platform owner now says the statement was more of a point highlighting free speech, which sounds one step away from saying "I was only joking, lol."

The situation began in November 2023 when IBM suspended its advertising on former Twitter platform X after a report from a media watchdog, which Musk is suing, said one of its ads appeared next to posts that promoted Hitler and the Nazi party. It came at a time when Musk was already facing criticism for posting a positive reply to a message arguing that Jewish communities push hatred against whites. Musk has since apologized for his post, calling it "perhaps one of the most foolish, if not the most foolish, thing I've ever done on the platform."

Apple, Walt Disney, Comcast, Warner Bros, and others also suspended advertising on the platform. Musk, who once called a cave diver involved in the rescue of a soccer team in Thailand a "pedo guy" for criticizing his plan to help, responded to the advertisers rushing to leave X by telling them to "Go f**k yourself" during an interview at The New York Times Dealbook Summit. When asked if he wanted the advertisers to return, he said "I don't want them to advertise. If somebody is going to try to blackmail with advertising, blackmail me with money, go f**k yourself,"

Watch my conversation with @ElonMusk : https://t.co/YedkELVhFn – Andrew Ross Sorkin (@andrewrsorkin) November 29, 2023

In an interview with WPP CEO Mark Read at Cannes Lions advertising festival in France, Musk was asked what his sweary instructions to advertisers meant.

"It wasn't to advertisers as a whole," Musk replied. "It was with respect to freedom of speech, I think it is important to have a global free speech platform, where people from a wider range of opinions can voice their views."

That claim seems even more questionable when you remember that Musk singled out Disney CEO Bob Iger at the time of his explicit proposition. "Hey Bob, if you're in the audience, that's how I feel," Musk said. The Disney+ app was soon removed from some Tesla vehicles, without the company explaining why. The EV giant later informed Disney that the app would be removed only for owners who had never used it before.

"In some cases, there were advertisers who were insisting on censorship," Musk said. "At the end of the day […] if we have to make a choice between censorship and losing money, [or] censorship and money, or free speech and losing money, we're going to choose the second."

"We're going to support free speech rather than agree to be censored for money which I think is the right moral decision," he added.

Addressing the situation that led us here in the first place, Musk said advertisers have the right to appear next to content that's agreeable with their brands, but added it was "not cool" to insist there can be no content that they disagree with on the platforms.

According to Statista, X/Twitter generated $4.73 billion in advertising revenue in 2022, the year Musk took over. It fell to $3.31 billion in 2023 and looks set to drop to $3.14 billion this year. At its current rate, that figure could hit $2.7 billion by 2027, which is partly why Musk is trying to woo advertisers back to the platform.

Masthead: Thomas Hawk

Permalink to story:

Elon Musk: telling advertisers to "go f**k yourself" was about freedom of speech

Posts: 359   +341

• Thursday at 10:24 AM

Overly rich manchild gonna do overly rich manchild things. Then backpedal on them, because of being just a scaredy manchild in the end.  

Posts: 6,604   +9,911

• Thursday at 10:33 AM

FF222 said: Overly rich manchild gonna do overly rich manchild things. Then backpedal on them, because of being just a scaredy manchild in the end. Click to expand...

Plutoisaplanet

Posts: 1,100   +1,658.

• Thursday at 10:34 AM

He was always talking about free speech when he made this statement. This explains further: https://twitter.com/i/web/status/1730277101415108872  

Posts: 9,818   +9,746

• Thursday at 10:47 AM

By pulling their advertising from X, those advertisers exercised their freedom of speech and poor little Musk did not like it. His telling them to go f themselves is his freedom of speech, but those advertisers are not entitled to their own freedom of speech? Musk paints himself the hypocrite, imo, every time he opens his mouth about this issue. Stop hiding behind your money, Musk. Grow up.  

Posts: 10,335   +9,823

• Thursday at 11:16 AM

You know, here is a perfect example why the congress needs to completely remove the law that protects big IT companies. They are well established so the law is no longer necessary or beneficial to the population. Time for corporations to stand on their own two feet AND be held accountable in all cases.  

Posts: 2,934   +2,914

• Thursday at 11:32 AM

wiyosaya said: By pulling their advertising from X, those advertisers exercised their freedom of speech and poor little Musk did not like it. Click to expand...

Posts: 173   +186

• Thursday at 12:28 PM

Musk talking about freedom of speech while he censors X is quite entertaining to watch.  

axiomatic13

Posts: 675   +864.

• Thursday at 2:02 PM

Let's be real. There are almost no big advertisers left on Twitter anymore. The only ad's I see anymore are t-shirt ad's hawking your favorite political person.  

Posts: 532   +294

• Thursday at 4:33 PM

That site is dead to me. It promotes hate speech, porn and a LOT of misinformation, what I call lies. I will pass on all the free speech.  

Posts: 2,986   +1,707

• Yesterday at 4:09 AM

X is the only large platform on this side of the political spectrum. Literally, ever y other one will lean the other side, promote and encourage that side. Most people are against hate and racism, even despite destruction of its meaning due to overuse and abuse by those trying to harm the reputation and life of others. But I find it very sad that while so many people strongly stand against hate, they are not so eager about allowing to speak those who do not share their beliefs. No hate good, no racism even better. Free speech? We can deal with it later. Yes, I know, we have a lot of people who have a very very strong feeling they are right and therefore hearing what others say is not that important. I mean, they are right, right? We have entire class of people who appointed themselves to be moral judges and therefore gave themselves power to decide who can speak. The one tiny problem is that those who disagree are not hundreds, not thousands but at least as many as the "moral judges" with power of speech control.  

Baldrickalpha1

• Yesterday at 10:43 AM

toooooot said: X is the only large platform on this side of the political spectrum. Literally, ever y other one will lean the other side, promote and encourage that side. Most people are against hate and racism, even despite destruction of its meaning due to overuse and abuse by those trying to harm the reputation and life of others. But I find it very sad that while so many people strongly stand against hate, they are not so eager about allowing to speak those who do not share their beliefs. No hate good, no racism even better. Free speech? We can deal with it later. Yes, I know, we have a lot of people who have a very very strong feeling they are right and therefore hearing what others say is not that important. I mean, they are right, right? We have entire class of people who appointed themselves to be moral judges and therefore gave themselves power to decide who can speak. The one tiny problem is that those who disagree are not hundreds, not thousands but at least as many as the "moral judges" with power of speech control. Click to expand...

Posts: 12   +7

• Yesterday at 3:39 PM

Bamda said: That site is dead to me. It promotes hate speech, porn and a LOT of misinformation, what I call lies. I will pass on all the free speech. Click to expand...

Posts: 51   +29

• Today at 5:58 AM

Elon Musk is hilarious. I love his quips, he knows exactly how to wind up the corporate establishment. (and its simps in comment sections worldwide). Watching him tell advertisers to go f*ck themselves was amazing. These companies are hypocritical. Disney has sweat shops and remove black actors from their films in various worldwide markets. Musk is right, they do need to go f*ck themselves.  

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