short article on freedom of speech

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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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First Amendment

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices . It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government .

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Amendment i.

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.

Wex Resources

The establishment clause.

Establishment Clause

Lee v. Weisman (1992)

Van Orden v. Perry (2005 )

Free Exercise Clause

State Action Requirement

Free Speech

Captive Audience

Prior Restraint

Absolute Privilege

Advocacy of Illegal Action

Fighting Words

Commercial Speech

Government Speech

Brandenburg Test

Schenk v. United States (1919)

Gitlow v. New York (1925)

Roth v. United States (1957)

Texas v. Johnson (1989)

Near v. Minnesota (1931)

New York Times v. Sullivan (1964)

Peaceful Assembly

Unlawful Assembly

Redress of Grievances

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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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• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• 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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Home » Articles » Freedom of Speech

Freedom of Speech

Written by Deborah Fisher, published on July 18, 2023 , last updated on April 9, 2024

Freedom of Speech is the most readily recognized of the five freedoms in the First Amendment and the only one that’s known by a majority of Americans. That’s not a surprise; it’s also the First Amendment freedom that most of us use every day and all day. 

Like the other guarantees in the Bill of Rights, our right to speak freely protects us from limits by the government. It does not, however, prevent rules limiting our speech in other settings. For example, an employer can tell an employee what not to say in the workplace. A condominium association can remove a sign on a resident’s front lawn if it’s in violation of bylaws. A private business can eject a customer engaged in what it regards as disruptive speech.

Free speech protection against government interference is not limited to the spoken word. The government is barred from limiting communication in many different settings, including the presentation of visual art, performances, songs, poetry and film. 

Protected speech can also be embodied in symbols that don’t specifically say anything but convey a point of view.

Principles of free speech stretch back centuries, as far as ancient Greece. Early codification of freedom of speech can be found in the English Parliament’s Bill of Rights passed in 1689, “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.” The bill was highly influential in the drafting of the United States Bill of Rights in 1791, roughly a century later.

The latter half of the 20 th century was a particularly robust era for the expansion and strengthening of free speech rights, thanks to both shifting judicial attitudes and the emergence of new technologies and platforms. Among key free speech decisions:

The free speech right to dissent

Political speech — comments about political figures and circumstances — have strong protection under the First Amendment, permitting often provocative actions and speech in the name of dissent.

Brandenburg v. Ohio (1969)

The Supreme Court ruled that advocacy of illegal conduct is protected as free speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” General advocacy of illegal acts in the future cannot be punished.

Texas v. Johnson (1989)

The Supreme Court invalidated a Texas law prohibiting flag desecration, concluding that the burning or desecration of a flag for expressive purposes is protected as free speech under the First Amendment. 

Spending as free speech

Citizens United v. FEC (2010)

The Supreme Court struck down restrictions on corporations spending funds for advocacy and influencing the potential outcome of elections. This established the right of corporations to engage in political speech. 

“The First Amendment does not allow political speech restrictions based on a  speaker’s corporate identity ,” Justice Anthony Kennedy wrote for the majority.

The decision is arguably the most controversial First Amendment ruling of the 21 st century and is often decried as enabling corruption in government.

The free speech rights of students

Young people also have First Amendment rights, tests of which usually arise in public schools. 

West Virginia Board of Education v. Barnette (1943)

The Supreme Court ruled that public school students could not be compelled to recite the pledge of allegiance, affirming that freedom of speech also means the freedom not to speak. The case also established that students have some level of First Amendment protection.

Tinker v. Des Moines Independent Community School District (1969)

The Supreme Court found that public school students were wrongly suspended after wearing black armbands to protest the war in Vietnam. Students have First Amendment rights, the court noted, and established that school administrators and teachers can’t limit students’ free expression unless they reasonably determine that the expression will “substantially disrupt” school operations or violate the rights of others. 

Limits on obscene content

Although many conflate “obscenity” with “pornography,” the latter is actually protected by the First Amendment. The Supreme Court has had to grapple with defining legally obscene content.

Miller v. California (1973)

Obscene content is not protected by the First Amendment, but not all sexually oriented content is obscene. In this case, the Supreme Court created a three-part test for determining whether content is legally obscene: “Whether the average person, applying contemporary  community standards , would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 

Cases involving non-traditional media and the internet

Joseph Burstyn v. Wilson (1952)

In striking down a New York ban on the public showing of a film entitled The Miracle , the Supreme Court concluded that government may not limit “sacreligious” speech and that film is protected by the First Amendment.

Reno v. American Civil Liberties Union (1997)  

In striking down provisions of the  1996 Communications Decency Act  (CDA) as violations of free speech rights, the Supreme Court concluded that content on the internet in the United States has the same level of protection as print publications and other physical media.  

Brown v. Entertainment Merchants Association (2011)

The Supreme Court invalidated a California law that criminalized the sale of violent video games to minors, concluding that the depiction of violence is not legally obscene and that First Amendment protections apply.

Written by Ken Paulson, director of the Free Speech Center, 2023.

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Articles on Freedom of speech

Displaying 1 - 20 of 184 articles.

Julian Assange: how British extradition law works

Gemma Davies , Durham University and Paul Arnell , Robert Gordon University

Employees have a right to express support for Black Lives Matter while they’re on the job, according to a historic labor board decision

Michael Z. Green , Texas A&M University

Publishing Taylor Swift’s flight information: Is it stalking or protected free speech?

Lynn Greenky , Syracuse University

Religious diversity is exploding – here’s what a faith-positive Britain might actually look like

Christopher Wadibia , University of Oxford

How AI threatens free speech – and what must be done about it

Philip Seargeant , The Open University

Nicaragua released imprisoned priests, but repression is unlikely to relent – and the Catholic Church remains a target

Kai M. Thaler , University of California, Santa Barbara

In Sweden, burning Qur'ans threaten to send the country’s history of tolerance up in smoke

Piero S. Colla , Université de Strasbourg

Indonesia is one of the world’s largest democracies, but it’s weaponising defamation laws to smother dissent

Tim Mann , The University of Melbourne

Freedom of thought is being threatened by states, big tech and even ourselves. Here’s what we can do to protect it

Simon McCarthy-Jones , Trinity College Dublin

Slapps: inside Europe’s struggle to protect journalists from malicious lawsuits

Francesca Farrington , University of Aberdeen and Justin Borg-Barthet , University of Aberdeen

Palestine protest arrests: why even police are confused about hate crime law

Mark Walters , University of Sussex

Patricio Guzmán: fierce filmmaker who chronicled 50 years of Chile’s history after Pinochet coup

Deborah Shaw , University of Portsmouth

Zimbabwe’s ‘Patriotic Act’ erodes freedoms and may be a tool for repression

Tinashe Sithole , University of Johannesburg

The Colorado website designer’s win is one of dozens of federal cases where religious beliefs and LGBTQ+ rights have clashed – and the pattern might not be what you think

Kelsy Burke , University of Nebraska-Lincoln and Emily Kazyak , University of Nebraska-Lincoln

Who benefits most from the protection of free speech – the haves or the  have-nots ?

Arthur Grimes , Te Herenga Waka — Victoria University of Wellington

For Tunisia’s muzzled media, Arab Spring is now a distant memory

Jacob Høigilt , University of Oslo and Kjetil Selvik , Norwegian Institute of International Affairs

Novelist, academic and tattoo artist Samuel Steward’s plight shows that ‘cancel culture’ was alive and well in the 1930s

Alessandro Meregaglia , Boise State University

Freedom of speech: Scotland could derail Europe’s drive to stop rich people silencing journalists

What the First Amendment really says – 4 basic principles of free speech in the US

A ‘stop Brexit’ sticker and suffragette colours: it’s really not clear what can get you kicked out of parliament

Alex Prior , London South Bank University

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Table of Contents

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

• David Hudson

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

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

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

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

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

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

Self-governance and a check against governmental abuse

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

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

Liberty and self-fulfillment

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

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

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

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

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

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

Informational theory

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

Coronavirus and the failure of the 'Marketplace of Ideas'

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

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

Safety valve theory

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

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

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

Tolerance theory

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

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

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

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

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

• Free Speech

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clock This article was published more than  2 years ago

A lunchtime newsletter featuring political analysis on the stories driving the day.

Most Americans support freedom of speech. But...

with research by Caroline Anders

Welcome to The Daily 202! Tell your friends to sign up here . One year ago, spurred on by then-president Donald Trump, thousands of his supporters breached and ransacked the Capitol. They interrupted the certification of Joe Biden’s election victory and disrupted the peaceful handover of power in the worst attack on Congress since the British burned it down in the War of 1812.

Programming note: The Washington Post today inserted copies of our investigative series “The Attack: Before, During and After” into 2,700 copies of the print newspaper that are delivered daily to offices on Capitol Hill.

The 28-page special section provides readers with the complete three-part series detailing the forces that led to the insurrection at the U.S. Capitol on Jan. 6 and the growing distrust in America’s elections that has spread in its aftermath. Readers can access “The Attack” o n The Post’s website and across Post platforms.

The big idea

Most americans support freedom of speech. but ....

Americans overwhelmingly support freedom of speech but are deeply conflicted on what is protected, what should be restricted, by whom, and on what grounds , according to a survey out today from the Knight Foundation of attitudes toward that bedrock constitutional right.

By huge majorities, the public says the First Amendment is extremely or very important to them (92 percent) and to our democracy (87 percent).

But there’s a “but.” Several large buts, in fact. In addition to partisan divisions, a shockingly large minority supports government restrictions on some kinds of speech under some circumstances, including commentary that would seem on its face to enjoy constitutional protections.

The issue is even more pressing one year after the Jan. 6 assault on the Capitol, propelled by a mob loyal to then-President Trump , who aggressively spread conspiracy theories saying the results of the 2020 election were illegitimate. While Trump can say whatever he likes, some social media sites have moved to deny him their platforms.

President Biden this morning, without naming Trump, squarely blamed his predecessor for weaving a “web of lies” about his 2020 loss.

“He’s done so because he values power over principle … because he sees his own interest as more important than his country’s interest and America’s interest, and because his bruised ego matters more to him than our democracy or our Constitution. He can’t accept he lost , ” Biden said .

Not new ground

Restrictions on free speech are hardly unplowed territory in the history of the First Amendment , the subject of constant political and judicial battles and shifting societal views, notably in the Internet era. A search of The Post alone shows a dizzying variety of views and arguments in recent years.

But this also is not some airless law-school debate. Congressional Democrats and Republicans have expressed mounting hostility toward social media behemoths like Facebook and Twitter and promised legislative action related to what those platforms tout, tolerate, or take down.

Democrats tend to focus on the spread of disinformation, whether about the pandemic or election practices. Republicans tend to focus on claims they’re being improperly censored, which rile up their base but lack supporting evidence .

On Tuesday, for example, House Minority Leader Kevin McCarthy (R-Calif.) took to Twitter to threaten Twitter after the site banned Rep. Marjorie Taylor Greene (R-Ga.), citing covid disinformation.

“ Twitter (all big tech), if you shut down constitutionally protected speech (not lewd and obscene) you should lose 230 protection. Acting as publisher and censorship regime should mean shutting down the business model you rely on today, and I will work to make that happen.”

(To be clear, Twitter isn’t violating anyone’s Freedom of Speech , a legal concept that doesn’t work that way in the private sector, by flagging or blocking someone’s content. “Section 230” is a provision in law that makes any website, from Twitter to your Aunt Lizzie’s “Succession” fan site, not legally liable for what users post, and not liable for what it decides to take down. It has become a bipartisan punching bag .)

Partisan splits

Some of this seems to reflect partisan splits. Among Republicans, 57 percent say spreading misinformation online about the 2020 election is a legitimate example of freedom of expression . The number drops to 44 percent when asked about covid misinformation, the Knight Foundation-Ipsos survey found. (The number for Democrats was 20 percent each time.)

Eighty-five percent of Democrats and 56 percent of Republicans say the summer 2020 protests against police violence were legitimate expressions of freedom of expression, while 73 percent of Democrats but just 35 percent of Republicans said the same of athletes kneeling during the national anthem.

Seventy-three percent of Republicans but just 39 percent of Democrats say protests against certifying the 2020 election fell under freedom of expression. Thirty-three percent of Republicans say the Capitol insurrectionists were legitimately using freedom of expression, nearly triple the number of Democrats.

Thirty-five percent of Republicans said a social media company removing someone who advocated violence constituted an infringement of their free-expression rights, against 11 percent of Democrats.

One of the largest (and least surprising) partisan gaps resulted from asking about social media companies booting Trump after the Jan. 6 2021 insurrection. Among Republicans, 77 percent said this deprived him of his rights, against 12 percent of Democrats.

(It’s not all polarized: Both parties came together to defend the right of teens to insult their high school on social media while off campus. That was ok for 64 percent of Republicans and 61 percent of Democrats.)

This takes us into some of the survey’s more unsettling findings, chiefly about American beliefs about when government can, and must, restrict speech.

Some seemed to be closer to the uncontroversial end of the spectrum: 83 percent of U.S. adults said government should prohibit threats against the health and safety of someone else, while 70 percent said the same of speech that may create “a dangerous situation.”

A 65 percent majority said government should prohibit racial insults or slurs, and 60 percent said the same about a racist or bigoted idea. 

In distinctly more controversial territory, 31 percent of Americans said government should prohibit “something rude or impolite to someone else” and 26 percent said the same about “political views that are offensive to some.”

For that last question, answers broke sharply along racial and partisan lines: 53 percent of Black respondents said government should prohibit such speech, against 44 percent of Hispanics, 35 percent of Asians and 15 percent of Whites. Thirty-six percent of Democrats, 24 percent of Independents, and 16 percent of Republicans agreed.

“Depending on how it is expressed, racist or bigoted speech could be construed as hate speech,” the report said. “ The groups most likely to believe racist or bigoted speech should be prohibited are also more likely to perceive hate speech as an act of violence and to believe that hate speech can lead to violence against minority groups. ”

The survey queried 4,336 adults in July and August 2021 using the Ipsos KnowledgePanel. The margin of sampling error is plus or minus 1.7 percentage points.

What's happening now

More from biden's remarks this morning in statuary hall.

“President Biden on Thursday decried the violent mob of President Donald Trump’s supporters who breached the Capitol a year ago, saying that ‘democracy was attacked’ and urging Americans to make sure such an attack ‘never, never happens again.’ Biden took direct aim at Trump, who he said could not accept that he lost and ‘created and spread a web of lies about the 2020 election,’” John Wagner, Amy B Wang, Mariana Alfaro, Eugene Scott and Felicia Sonmez report .

Ted Cruz has been getting hammered all day by MAGAs outraged by his speech today that J6 was a “terrorist attack on the Capitol.” It started this morning with Steve Bannon, and tonight here is Tucker attacking Ted. pic.twitter.com/jeqRV5MCcu — Ron Filipkowski (@RonFilipkowski) January 6, 2022

Tucker Carlson mocks Ted Cruz, Republicans for saying Jan. 6 was a ‘violent terrorist attack’

“ Tucker Carlson not only mocked the idea that the storming of the Capitol was an insurrection but also accused [Sen. Ted] Cruz and other Republicans of 'repeating the talking points that Merrick Garland has written for them.’” Timothy Bella reports .

The Supreme Court is set to review Biden’s vaccine rules for businesses, health-care workers. Here’s what to know.

“The Supreme Court on Friday will review two challenges to the administration’s vaccine policies affecting nearly 100 million workers. Most already have made the choice to be vaccinated, but Biden has said the numbers are not good enough,” Ann E. Marimow and Robert Barnes report .

Lunchtime reads from The Post

The battle to prevent another jan. 6 features a new weapon: the algorithm.

“For many Americans who witnessed the attack on the Capitol last Jan. 6, the idea of mobs of people storming a bedrock of democracy was unthinkable. For the data scientists who watched it unfold, the reaction was a little different: They’d been thinking about this for a long time,” Steven Zeitchik reports .

“That sentiment comes from a small group working in a cutting-edge field known as unrest prediction. The group takes a promising if fraught approach that applies the complex methods of machine-learning to the mysterious roots of political violence. Centered since its inception a number of years ago on the developing world, the field’s systems since last Jan. 6 are slowly being retooled with a new goal: predicting the next Jan. 6 .”

The Pentagon vowed to confront extremism in the ranks. A year after Jan. 6, experts say more must be done.

“The scores of military-trained rioters who took part in last year’s assault on the U.S. Capitol prompted the Pentagon to crack down on a long-buried problem with extremism in the ranks. But a year later, it remains unclear how the Defense Department intends to weed out anti-government sentiment and ensure the individuals promoting those views don’t pose a threat once they leave the armed forces ,” Karoun Demirjian writes .

… and beyond

We are in a new civil war … about what exactly.

“ Only in recent years have we seen foundation-shaking political conflict — both sides believing the other would turn the United States into something unrecognizable — with no obvious and easily summarized root caus e. What is the fundamental question that hangs in the balance between the people who hate Trump and what he stands for and the people who love Trump and hate those who hate him?” asks Politico 's founding editor John Harris.

“ The transcendent issue of this time — no matter the specific raw material of any given news cycle — is the belief that one half of the country suspects the other half is contemptuous of them, and responds with contempt in turn . ‘Seinfeld’ was not really, as was often said, ‘a show about nothing.’ It demonstrated instead that with the right characters and frame of mind, you can make a show about anything that might happen in daily life. Donald Trump has shown that you can use the same approach to create a national crack-up. The violent rabble that crashed the Capitol a year ago showed that crack-ups are fertile ground for crackpots.”

The Biden agenda

‘shocked and stunned and horrified’: how joe biden processed jan. 6.

“What flowed from him on the 6th was something he was speaking to for a long, long time. It was not a difficult thing to bring together,” Mike Donilon , a senior adviser to the president, recalled in an interview with Politico , Laura Barrón López and Christopher Cadelago report . “I believe — I think he believes — that there was a through-line and that the threat that he saw when he announced at the time — that everything that made America America was at stake.”

“ What we believe, what we stood for, our democracy, was all on the line ,” Donilon added.

For C.D.C.’s Walensky, a steep learning curve on messaging

“President Biden came into office vowing to restore public trust in the C.D.C. after the Trump White House had tied the agency’s hands and manipulated its scientific judgments on the pandemic for political ends. Yet in his first year of battling the coronavirus, Mr. Biden has presided over a series of messaging failures that have followed a familiar pattern, with Dr. Walensky and her team making what experts say are largely sound decisions, but fumbling in communicating them to America ,” the NYT 's Sharon LaFraniere, Sheryl Gay Stolberg and Noah Weiland report .

Biden to speak in Atlanta next week on urgency of passing voting rights bills

“The White House announced Wednesday that Biden would travel to Georgia on Tuesday and speak about the need ‘to protect the constitutional right to vote and the integrity of our elections from corrupt attempts to strip law-abiding citizens of their fundamental freedoms and allow partisan state officials to undermine vote counting processes,’” Eugene Scott reports .

Capitol riot defendants sentences, visualized

“Federal judges in D.C. have gone below the government recommendation in 49 out of 74 sentencings held for Capitol riot defendants as of Jan. 6, more than two-thirds of cases. In eight cases where prosecutors asked for jail time, the judges instead opted for probation,”  our colleagues report.

Hot on the left

Opinion: the false prophets who inspired the violence on jan. 6.

“Looking back on the events of Jan. 6, perhaps we should focus more on the false prophets who inspired the violence of that day than the rioters we still highlight on video loops,” columnist Joe Scarborough writes .

“ The targets of [the] misinformation campaign now await trial or languish in jail while the authors of these phony crises sleep comfortably in their marbled mansions and beachside resorts. They are free to travel the world on their super yachts or private jets while Jan. 6 defendants beg for their freedom in federal court .”

Hot on the right

Opinion: china immortalizes ‘pillar of shame’.

“The People’s Republic of China expanded its attacks on Hong Kong’s liberties this past fall by menacing a statue at Hong Kong University commemorating the 1989 Tiananmen Square massacre. But all its aggression against the work of art may have done Beijing’s authoritarian agenda more harm than good ,” Victoria Coates writes in the Wall Street Journal . Coates is the author of “David’s Sling: A History of Democracy in Ten Works of Art” and previously served as a deputy White House national security adviser.

The statue was “carted away to an unknown fate” on Dec. 22, Coates writes, but “ history shows that the attempt to suppress a work of art may end up preserving it .”

Today in Washington

At 1 p.m., Senate Majority Leader Charles E. Schumer and House Speaker Nancy Pelosi will hold a discussion on the legacy of Jan. 6 with Carla Hayden , the librarian of Congress, and historians Doris Kearns Goodwin and Jon Meacham .

Members of Congress will share their reflections on Jan. 6 at 2:30 p.m.

Schumer and Pelosi will lead a prayer vigil at 5:30 p.m. on the center steps of the U.S. Capitol.

In a statement on the cancellation of his planned Jan. 6 anniversary remarks, Trump referred to the insurrection as a “completely unarmed protest." Stephen Colbert has a quick note on that.

Thanks for reading. See you tomorrow.

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Experts say attacks on free speech are rising across the US

A content disclaimer sits at the entrance to the Unconditional Care exhibit Monday, March 6, 2023, at the Lewis-Clark State College Center for Arts & History in Lewiston, Idaho. Artists said some of their works weren’t allowed in the exhibit by LCSC, which cited Idaho’s No Public Funds for Abortion for removing some of the pieces. In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. In Washington, a lawmaker proposed a hotline for reporting people who make offensively biased statements. In Florida, bloggers are fighting a bill that would force them to register with the state if they write posts criticizing public officials. (August Frank/Lewiston Tribune via AP, File)

FILE - A “Drag Thing"— neither a queen or king— reads a children’s book to the crowd for Drag Story Time at the Boise Pride Festival on Sunday, Sept, 11, 2022, in Boise, Idaho. In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. Meanwhile, bans on books and drag performances are growing increasingly common nationwide.(Sarah A. Miller/Idaho Statesman via AP, File)

A content disclaimer sits at the entrance to the Unconditional Care exhibit Monday, March 6, 2023, at the Lewis-Clark State College Center for Arts & History in Lewiston, Idaho. Artists said some of their works weren’t allowed in the exhibit by LCSC, which cited Idaho’s No Public Funds for Abortion for removing some of the pieces. (August Frank/Lewiston Tribune via AP)

FILE - Eliza Walton of Boise and Josie Backus of Nampa participate in a demonstration to read book titles that the Nampa School District is working to remove as dozens of people read those books sitting in the lawn in front of the school administration office during a school board meeting Thursday, June 16, 2022, in Nampa, Idaho. In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. Meanwhile, bans on books and drag performances are growing increasingly common nationwide. (Sarah A. Miller/Idaho Statesman via AP)

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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.

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 .

Oregon created a similar bias hotline in 2019. It received nearly 1,700 calls in 2021, with nearly 60% 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.”

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.”

The myth of the free speech crisis

How overblown fears of censorship have normalised hate speech and silenced minorities. By Nesrine Malik

W hen I started writing a column in the Guardian, I would engage with the commenters who made valid points and urge those whose response was getting lost in rage to re-read the piece and return. Comments were open for 72 hours. Coming up for air at the end of a thread felt like mooring a ship after a few days on choppy waters, like an achievement, something that I and the readers had gone through together. We had discussed sensitive, complicated ideas about politics, race, gender and sexuality and, at the end, via a rolling conversation, we had got somewhere.

In the decade since, the tenor of those comments became so personalised and abusive that the ship often drowned before making it to shore – the moderators would simply shut the thread down. When it first started happening, I took it as a personal failure – perhaps I had not struck the right tone or not sufficiently hedged all my points, provoking readers into thinking I was being dishonest or incendiary. In time, it dawned on me that my writing was the same. It was the commenters who had changed. It was becoming harder to discuss almost anything without a virtual snarl in response. And it was becoming harder to do so if one were not white or male.

As a result, the Guardian overhauled its policy and decided that it would not open comment threads on pieces that were certain to derail. The moderators had a duty of care to the writers, some of whom struggled with the abuse, and a duty of care to new writers who might succumb to a chilling effect if they knew that to embark on a journalism career nowadays comes inevitably with no protection from online thuggery. Alongside these moral concerns there were also practical, commercial ones. There were simply not enough resources to manage all the open threads at the same time with the increased level of attention that was now required.

In the past 10 years, many platforms in the press and social media have had to grapple with the challenges of managing users with increasingly sharp and offensive tones, while maintaining enough space for expression, feedback and interaction. Speech has never been more free or less intermediated. Anyone with internet access can create a profile and write, tweet, blog or comment, with little vetting and no hurdle of technological skill. But the targets of this growth in the means of expression have been primarily women, minorities and LGBTQ+ people.

A 2017 Pew Research Center survey revealed that a “wide cross-section” of Americans experience online abuse, but that the majority was directed towards minorities, with a quarter of black Americans saying they have been attacked online due to race or ethnicity. Ten per cent of Hispanics and 3% of whites reported the same. The picture is not much different in the UK. A 2017 Amnesty report analysed tweets sent to 177 female British MPs. The 20 of them who were from a black and ethnic minority background received almost half the total number of abusive tweets.

The vast majority of this abuse goes unpunished. And yet it is somehow conventional wisdom that free speech is under assault, that university campuses have succumbed to an epidemic of no-platforming, that social media mobs are ready to raise their pitchforks at the most innocent slip of the tongue or joke, and that Enlightenment values that protected the right to free expression and individual liberty are under threat. The cause of this, it is claimed, is a liberal totalitarianism that is attributable (somehow) simultaneously to intolerance and thin skin. The impulse is allegedly at once both fascist in its brutal inclinations to silence the individual, and protective of the weak, easily wounded and coddled.

This is the myth of the free speech crisis. It is an extension of the political-correctness myth , but is a recent mutation more specifically linked to efforts or impulses to normalise hate speech or shut down legitimate responses to it. The purpose of the myth is not to secure freedom of speech – that is, the right to express one’s opinions without censorship, restraint or legal penalty. The purpose is to secure the licence to speak with impunity; not freedom of expression, but rather freedom from the consequences of that expression.

The myth has two components: the first is that all speech should be free; the second is that freedom of speech means freedom from objection.

The first part of the myth is one of the more challenging to push back against, because instinctively it feels wrong to do so. It seems a worthy cause to demand more political correctness, politeness and good manners in language convention as a bulwark against society’s drift into marginalising groups with less capital, or to argue for a fuller definition of female emancipation. These are good things, even if you disagree with how they are to be achieved. But to ask that we have less freedom of speech – to be unbothered when people with views you disagree with are silenced or banned – smacks of illiberalism. It just doesn’t sit well. And it’s hard to argue for less freedom in a society in which you live, because surely limiting rights of expression will catch up with you at some point. Will it not be you one day, on the wrong side of free speech?

There is a kernel of something that makes all myths stick – something that speaks to a sense of justice, liberty, due process and openness and allows those myths to be cynically manipulated to appeal to the good and well-intentioned. But challenging the myth of a free speech crisis does not mean enabling the state to police and censor even further. Instead, it is arguing that there is no crisis. If anything, speech has never been more free and unregulated. The purpose of the free-speech-crisis myth is to guilt people into giving up their right of response to attacks, and to destigmatise racism and prejudice. It aims to blackmail good people into ceding space to bad ideas, even though they have a legitimate right to refuse. And it is a myth that demands, in turn, its own silencing and undermining of individual freedom. To accept the free-speech-crisis myth is to give up your own right to turn off the comments.

A t the same time that new platforms were proliferating on the internet, a rightwing counter-push was also taking place online. It claimed that all speech must be allowed without consequence or moderation, and that liberals were assaulting the premise of free speech. I began to notice it around the late 2000s, alongside the fashionable atheism that sprang up after the publication of Richard Dawkins’s The God Delusion . These new atheists were the first users I spotted using argumentative technicalities (eg “Islam is not a race”) to hide rank prejudice and Islamophobia. If the Guardian published a column of mine but did not open the comment thread, readers would find me on social media and cry censorship, then unleash their invective there instead.

As platforms multiplied, there were more and more ways for me to receive feedback from readers – I could be sworn at and told to go back to where I came from via at least three mediums. Or I could just read about how I should go back to where I came from in the pages of print publications, or on any number of websites. The comment thread seemed redundant. The whole internet was now a comment thread. As a result, mainstream media establishments began to struggle with this glut of opinion, failing to curate the public discussion by giving into false equivalence. Now every opinion must have a counter-opinion.

I began to see it in my own media engagements. I would be called upon by more neutral outlets, such as the BBC, to discuss increasingly more absurd arguments with other journalists or political activists with extreme views. Conversations around race, immigration, Islam and climate change became increasingly binary and polarised even when there were no binaries to be contemplated. Climate change deniers were allowed to broadcast falsehoods about a reversal in climate change. Racial minorities were called upon to counter thinly veiled racist or xenophobic views. I found myself, along with other journalists, regularly ambushed. I appeared on BBC’s Newsnight to discuss an incident in which a far-right racist had mounted a mosque pavement with his car and killed one of the congregation, and I tried to make the point that there was insufficient focus on a growing far-right terror threat. The presenter then asked me: “Have you had abuse? Give us an example.” This became a frequent line of inquiry – the personalisation and provocation of personal debate – when what was needed was analysis.

It became common for me and like-minded colleagues to ask – when invited on to TV or radio to discuss topics such as immigration or Islamophobia – who was appearing on the other side. One British Asian writer was invited on to the BBC to discuss populist rage. When he learned that he would be debating Melanie Phillips – a woman who has described immigrants as “convulsing Europe” and “refusing to assimilate” – he refused to take part, because he did not believe the topic warranted such a polarised set-up. The editor said: “This will be good for your book. Surely you want to sell more copies?” The writer replied that if he never sold another book in his life as a result of refusing to debate with Melanie Phillips, he could live with that. This was now the discourse: presenting bigotry and then the defence of bigotry as a “debate” from which everyone can benefit, like a boxing match where even the loser is paid, along with the promoters, coaches and everyone else behind arranging the fight. The writer Reni Eddo-Lodge has called it “performing rage”.

Views previously consigned to the political fringes made their way into the mainstream via social and traditional media organisations that previously would never have contemplated their airing. The expansion of media outlets meant that it was not only marginalised voices that secured access to the public, but also those with more extreme views.

This inevitably expanded what was considered acceptable speech. The Overton window – the range of ideas deemed to be acceptable by the public – shifted as more views made their way from the peripheries to the centre of the conversation. Any objection to the airing of those views would be considered an attempt to curtail freedom of speech. Whenever I attempted to push back in my writing against what amounted to incitement against racial or religious minorities, my opponents fixated on the free speech argument, rather than the harmful ramifications of hate speech.

I n early 2018, four extreme-right figures were turned away at the UK border. Their presence was deemed “not conducive to the public good”. When I wrote in defence of the Home Office’s position, my email and social media were flooded with abuse for days. Rightwing media blogs and some mainstream publications published pieces saying my position was an illiberal misunderstanding of free speech. No one discussed the people who were banned, their neo-Nazi views, or the risk of hate speech or even violence had they been let in.

What has increased is not intolerance of speech; there is simply more speech. And because that new influx was from the extremes, there is also more objectionable speech – and in turn more objection to it. This is what free-speech-crisis myth believers are picking up – a pushback against the increase in intolerance or bigotry. But they are misreading it as a change in free speech attitudes. This increase in objectionable speech came with a sense of entitlement – a demand that it be heard and not challenged, and the freedom of speech figleaf became a convenient tool. Not only do free speech warriors demand all opinions be heard on all platforms they choose, from college campuses to Twitter, but they also demand that there be no objection or reaction. It became farcical and extremely psychologically taxing for anyone who could see the dangers of hate speech, and how a sharpening tone on immigration could be used to make the lives of immigrants and minorities harder.

When Boris Johnson compared women who wear the burqa to “letterboxes” and “bank robbers”, it led to a spike in racist incidents against women who wear the niqab, according to the organisation Tell Mama, a national project which records and measures anti-Muslim incidents in the UK. Pointing this out and making the link between mockery of minorities and racist provocation against them was, according to Johnson’s supporters, assailing his freedom of speech. The British journalist Isabel Oakeshott tweeted that if he were disciplined by his party for “perfectly reasonable exercise of free speech, something has gone terribly wrong with the party leadership”, and that it was “deplorable to see [the Tory leadership] pandering to the whinings of the professionally offended in this craven way”.

Free speech had seemingly come to mean that no one had any right to object to what anyone ever said – which not only meant that no one should object to Johnson’s comments but, in turn, that no one should object to their objection. Free speech logic, rather than the pursuit of a lofty Enlightenment value, had become a race to the bottom, where the alternative to being “professionally offended” is never to be offended at all. This logic today demands silence from those who are defending themselves from abuse or hate speech. It is, according to the director of the Institute of Race Relations, “ the privileging of freedom of speech over freedom to life ”.

Our alleged free speech crisis was never really about free speech. The backdrop to the myth is rising anti-immigration sentiment and Islamophobia. Free-speech-crisis advocates always seem to have an agenda. They overwhelmingly wanted to exercise their freedom of speech in order to agitate against minorities, women, immigrants and Muslims.

But they dress these base impulses up in the language of concern or anti-establishment conspiracism. Similar to the triggers of political-correctness hysteria, there is a direct correlation between the rise in free speech panic and the rise in far-right or hard-right political energy, as evidenced by anti-immigration rightwing electoral successes in the US, the UK and across continental Europe. As the space for these views expanded, so the concept of free speech became frayed and tattered. It began to become muddled by false equivalence, caught between fact and opinion, between action and reaction. The discourse became mired in a misunderstanding of free speech as absolute.

As a value in its purest form, freedom of speech serves two purposes: protection from state persecution, when challenging the authority of power or orthodoxy; and the protection of fellow citizens from the damaging consequences of absolute speech (ie completely legally unregulated speech) such as slander. According to Francis Canavan in Freedom of Expression: Purpose As Limit – his analysis of perhaps the most permissive free speech law of all, the first amendment of the US constitution – free speech must have a rational end, which is to facilitate communication between citizens. Where it does not serve that end, it is limited. Like all freedoms, it ends when it infringes upon the freedoms of others. He writes that the US supreme court itself “has never accepted an absolutist interpretation of freedom of speech. It has not protected, for example, libel, slander, perjury, false advertising, obscenity and profanity, solicitation of a crime, or ‘fighting’ words. The reason for their exclusion from first-amendment protection is that they have minimal or no values as ideas, communication of information, appeal to reason, step towards truth etc; in short, no value in regard to the ends of the amendment.”

Those who believe in the free-speech-crisis myth fail to make the distinction between “fighting” words and speech that facilitates communication; between free speech and absolute speech. Using this litmus test, the first hint that the free speech crisis is actually an absolute speech crisis is the issues it focuses on. On university campuses, it is overwhelmingly race and gender. On social media, the free speech axe is wielded by trolls, Islamophobes and misogynists, leading to an abuse epidemic that platforms have failed to curb.

This free speech crisis movement has managed to stigmatise reasonable protest, which has existed for years without being branded as “silencing”. This is, in itself, an assault on free expression.

What is considered speech worthy of protection is broadly subjective and depends on the consensual limits a society has drawn. Western societies like to think of their version of freedom of speech as exceptionally pristine, but it is also tainted (or tempered, depending on where you’re coming from) by convention.

T here is only one way to register objection of abhorrent views, which is to take them on. This is a common narcissism in the media. Free speech proponents lean into the storm, take on the bad guys and vanquish them with logic. They also seem, for the most part, incapable of following these rules themselves.

Bret Stephens of the New York Times – a Pulitzer prize-winning star columnist who was poached from the Wall Street Journal in 2017 – often flatters himself in this light, while falling apart at most of the criticism he receives. For a man who calls for “free speech and the necessity of discomfort” as one of his flagship positions as a columnist, he seems chronically unable to apply that discipline to himself.

In his latest tantrum , just last week, Stephens took umbrage against a stranger, the academic David Karpf, who made a joke calling him a “metaphorical bedbug” on Twitter, as a riff on a report that the New York Times building was suffering from a bedbug infestation. (The implication was that Stephens is a pain and difficult to get rid of, just to kill the punchline completely.)

Stephens was alerted to the tweet, then wrote to Karpf, his provost, and the director of the School of Media and Public Affairs, where Karpf is a professor. He in effect asked to speak to Karpf’s managers so that he could report on a man he doesn’t know, who made a mild joke about him that would otherwise have been lost in the ether of the internet because – well, because, how dare he? The powerful don’t have to suffer “the necessity of discomfort”; it’s only those further down the food chain who must bear the moral burden of tolerance of abusive speech. Stephens’s opponents – who include Arabs, whose minds Stephens called “diseased”, and Palestinians, who are en masse one single “mosquito” frozen in amber – must bear it all with good grace.

Stephens has a long record of demanding respect when he refuses to treat others with the same. In response to an objection that the New York Times had published an article about a Nazi that seemed too sympathetic, he wrote: “A newspaper, after all, isn’t supposed to be a form of mental comfort food. We are not an advocacy group, a support network, a cheering section, or a church affirming a particular faith – except, that is, a faith in hard and relentless questioning.” He called disagreement “a dying art”. This was particularly rich from someone who at one time left social media because it was too shouty, only to return sporadically to hurl insults at his critics.

In June 2017, Stephens publicly forswore Twitter, saying that the medium debased politics and that he would “intercede only to say nice things about the writing I admire, the people I like and the music I love”.

He popped up again to call ex-Obama aide Tommy Vietor an “asshole” ( a tweet he later deleted after it was flagged as inappropriate by the New York Times). In response to a tweet by a Times colleague (who had himself deleted a comment after receiving flack for it, and admitted that it had not been well crafted), Stephens said: “This. Is. Insane. And must stop. And there is nothing wrong with your original tweet, @EricLiptonNYT. And there is something deeply psychologically wrong with people who think there is. And fascistic. And yes I’m still on Twitter.”

A dying art indeed. Stephens again deactivated his account after bedbug-gate, retreating to the safe space of the high security towers of the New York Times where, I am told, the bedbug infestation remains unvanquished.

Stephens is a promoter of the “free speech crisis” myth. It is one that journalists, academics and political writers have found useful in chilling dissent. The free-speech-crisis myth serves many purposes. Often it is erected as a moral shield for risible ideas – a shield that some members of the media are bamboozled into raising because of their inability to look past their commitment to free speech in the abstract.

T rolling has become an industry. It is now a sort of lucrative contact sport, where insults and lies are hurled around on television, radio, online and in the printed press. CNN’s coverage of the “Trump transition”, after Donald Trump was elected as US president, was a modern version of a medieval freak show. Step right up and gawk at Richard Spencer , the Trump supporter and head of far-right thinktank the National Policy Institute, as he questions whether Jews “are people at all, or instead soulless golem”. And at the black Trump surrogate who thinks Hillary Clinton started the war in Syria. And at Corey Lewandowski, a man who appeared on CNN as a political commentator, who appears to make a living from lying in the media, and who alleged that the Trump birther story , in which Trump claimed that Barack Obama was not born on US soil, was in fact started by Hillary Clinton.

In pursuit of ratings – from behind a “freedom of speech” figleaf, and perhaps with the good intention of balance on the part of some – many media platforms have detoxified the kind of extreme or untruthful talk that was until recently confined to the darker corners of Reddit or Breitbart. And that radical and untruthful behaviour has a direct impact on how safe the world is for those smeared by these performances. Trump himself is the main act in this lucrative show. Initially seen as an entertaining side act during his election campaign, his offensive, untruthful and pugnacious online presence became instantly more threatening and dangerous once he was elected. Inevitably, his incontinence, bitterness, rage and hatemongering, by sheer dint of constant exposure, became less and less shocking, and in turn less and less beyond the pale.

A world where all opinions and lies are presented to the public as a sort of take-it-or-leave it buffet is often described as “the marketplace of ideas”, a rationalisation for freedom of expression based on comparing ideas to products in a free-market economy. The marketplace of ideas model of free speech holds that what is true factually, and what is good morally, will emerge after a competition of ideas in a free, unmoderated and transparent public discourse, a healthy debate in which the truth will prevail. Bad ideas and ideologies will lose out and wither away as they are vanquished by superior ones. The problem with the marketplace of ideas theory (as with all “invisible hand”-type theories) is that it does not account for a world in which the market is skewed, and where not all ideas receive equal representation because the market has monopolies and cartels.

But real marketplaces actually require a lot of regulation. There are anti-monopoly rules, there are interest rate fixes and, in many markets, artificial currency pegs. In the press, publishing and the business of ideas dispersal in general, there are players that are deeply entrenched and networked, and so the supply of ideas reflects their power.

Freedom of speech is not a neutral, fixed concept, uncoloured by societal prejudice. The belief that it is some absolute, untainted hallmark of civilisation is linked to self-serving exceptionalism – a delusion that there is a basic template around which there is a consensus uninformed by biases. The recent history of fighting for freedom of speech has gone from something noble – striving for the right to publish works that offend people’s sexual or religious prudery, and speaking up against the values leveraged by the powerful to maintain control – to attacking the weak and persecuted. The effort has evolved from challenging upwards to punching downwards.

It has become bogged down in false equivalence and extending the sanctity of fact to opinion, thanks in part to a media that has an interest in creating from the discourse as much heat as possible – but not necessarily any light. Central in this process is an establishment of curators, publishers and editors for whom controversy is a product to be pushed. That is the marketplace of ideas now, not a free and organic exchange of intellectual goods.

The truth is that free speech, even to some of its most passionate founding philosophers, always comes with braking mechanisms, and they usually reflect cultural bias. John Milton advocated the destruction of blasphemous or libellous works: “Those which otherwise come forth, if they be found mischievous and libellous, the fire and the executioner will be the timeliest and the most effectual remedy, that mans [sic] prevention can use.” Today, our braking mechanisms still do not include curbing the promotion of hate towards those at the bottom end of the social hierarchy, because their protection is not a valued or integral part of our popular culture – despite what the free-speech-crisis myth-peddlers say.

Free speech as an abstract value is now directly at odds with the sanctity of life. It’s not merely a matter of “offence”. Judith Butler, a cultural theorist and Berkeley professor, speaking at a 2017 forum sponsored by the Berkeley Academic Senate, said: “If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values. We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech.”

We challenge this instrumentalisation by reclaiming the true meaning of the freedom of speech (which is freedom to speak rather than a right to speak without consequence), challenging hate speech more forcefully, being unafraid to contemplate banning or no-platforming those we think are harmful to the public good, and being tolerant of objection to them when they do speak. Like the political-correctness myth, the free-speech-crisis myth is a call for orthodoxy, for passiveness in the face of assault.

A moral right to express unpopular opinions is not a moral right to express those opinions in a way that silences the voices of others, or puts them in danger of violence. There are those who abuse free speech, who wish others harm, and who roll back efforts to ensure that all citizens are treated with respect. These are facts – and free-speech-crisis mythology is preventing us from confronting them.

This is an edited extract from We Need New Stories: Challenging the Toxic Myths Behind Our Age of Discontent, published by W&N on 5 September and available at guardianbookshop.co.uk

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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.

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6 The Golden Era of Free Speech

• Published: August 2022
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Social media and the internet have significantly expanded the landscape of free expression, exponentially increasing the access that any member of the general public has to disseminate speech to a mass audience and ushering in what may be described as the golden era of free speech. Though this expansion has come with unique, unforeseen challenges that must be addressed through reform, it has also provided significant benefits that should not be sacrificed in addressing those challenges. Focusing on the importance of these advancements in free expression, this essay examines the current debate and proposals regarding Section 230 of the Communications Decency Act and analyzes why the law is effective and should be subject to only minor revisions. Although it champions the benefits of this golden era of free speech, this essay also identifies significant problems that arise with false speech and foreign speech and discusses the limitations of First Amendment doctrine in addressing these issues.

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Justices Appear Skeptical Of Calif. Law Challenged By Anti-Abortion Centers

Nina Totenberg

Anti-abortion activists protest in the rain in front of the Supreme Court. The court is hearing arguments Tuesday on the state of crisis pregnancy centers. Lee Sheehan/NPR hide caption

Anti-abortion activists protest in the rain in front of the Supreme Court. The court is hearing arguments Tuesday on the state of crisis pregnancy centers.

Updated on March 21 at 7:35 p.m. ET

Supreme Court justices on both sides of the ideological spectrum expressed skepticism Tuesday about California's "truth-in-advertising" law requiring anti-abortion clinics to more fully disclose what they are.

The anti-abortion "crisis pregnancy centers" objected to the law on free-speech grounds.

While some more liberal justices appeared receptive to the state's case initially, doubt about the law seemed to increase as the argument progressed.

Justice Anthony Kennedy, potentially the swing justice, said the law in certain circumstances would seem to impose an undue burden. He cited a hypothetical example of a billboard in Los Angeles with the words "Choose Life," paid for by an anti-abortion clinic. Under California's law, would the ad have to include, as the statute says, the words about the clinic being unlicensed, in large font and in multiple languages?

Yes, it would, said the lawyer for the state. For Kennedy, that seemed to be too much. That, he seemed to say, ended the case for him — the statute is unconstitutional.

What this case is about

The case before the justices pitted the right to know against the right of free speech. On one side are self-identified "crisis pregnancy centers" that seek to prevent abortions, and on the other side is the state of California, which enacted a law to ensure that these centers do not intentionally or unintentionally mislead the women who walk through their doors.

Supporters of the California law call the state's effort nothing more than seeking "truth in advertising." But anti-abortion pregnancy centers see the law as unconstitutional, compelling speech that turns them into mouthpieces for a government message they disagree with.

Passions run high when it comes to abortion. Add the fact that most anti-abortion pregnancy centers have a firm Christian perspective, and you have quite a volatile mix.

Notice requirements for unlicensed and licensed centers

The case began in 2015 when California passed a law known as the FACT Act. (It stands for Freedom, Accountability, Comprehensive Care and Transparency.)

The impetus was two-fold — first, allegations that pregnancy centers opposed to abortion were using deceptive practices; and second, concern that lower-income women, in particular, weren't aware of the free pregnancy-related services California provides, from prenatal and delivery care to birth control and abortion.

The FACT Act requires unlicensed crisis pregnancy centers to post a sign or otherwise disclose to their clients in writing that the center is not a licensed medical facility and has no licensed medical provider who supervises the provision of services. The disclosure requirement extends to advertising, which anti-abortion pregnancy centers object to as an attempt to "drown out" their message.

The state sees the law as a public health measure to ensure that women know when they are entering an unlicensed clinic and that they know the state provides free access for prenatal and delivery care as well as for contraception and abortion services that clinics opposed to abortion do not provide.

Supreme Court Finds Texas Law On Abortion Providers Unconstitutional

In contrast, anti-abortion clinics see the California law as unconstitutional because in the case of licensed clinics, it requires them to point patients to clinics that engage in practices they oppose. In addition, they see the declaration of unlicensed status as drowning out their message.

The second provision of the law, dealing with licensed centers, requires clinics that do not provide a full range of reproductive care, including services covered by Medicaid, to post a sign that says the state provides free or low-cost access to prenatal care, birth control, and other reproductive care, including abortion.

The sign is to include the phone number of the county social services office for referrals. But licensed centers do not have to post the notice in their advertising.

Sauce for the goose is sauce for the gander

Anti-abortion activists converge in front of the Supreme Court last year during the annual "March for Life." Andrew Harnik/AP hide caption

Anti-abortion activists converge in front of the Supreme Court last year during the annual "March for Life."

Inside the Supreme Court chamber, lawyer Michael Farris, representing the anti-abortion clinics, told the justices that California's law "took aim at pro-life pregnancy centers by compelling licensed centers to point the way to an abortion and imposing onerous advertising rules on unlicensed centers."

Justices Ruth Bader Ginsburg, Anthony Kennedy and Sonia Sotomayor observed that the court has in the past upheld laws enacted by "pro-life states." In the 1992 case Planned Parenthood v. Casey, the court upheld laws that require doctors to tell women seeking an abortion about alternatives, including telling the pregnant woman that the father of the child would be liable for child support.

As Justice Elena Kagan put it, "They're really the exact flip side of the requirements in this case."

Therefore, the justices asked, why shouldn't a "pro-choice state" require anti-abortion clinics to tell women that there are other options, including contraception and abortion.

Farris said California's law is different, because it involves clinics that provide medical procedures. Justice Samuel Alito asked, what if the state required all clinics to post a referral notice advising patients where they can learn about all their options. Farris said that was still unconstitutional.

"In law ... what is sauce for the goose is sauce for the gander," Justice Stephen Breyer observed. "If a pro-life state can tell a doctor you have to tell people about adoption, why can't a pro-choice state tell a doctor ... you have to tell people about abortion?"

A "suspicious pattern"

The tone of the argument turned, however, when Justice Kennedy raised his billboard hypothetical. Requiring unlicensed clinics to disclose their status on such billboards, he said, would pose an "undue burden" and "should suffice to invalidate the statute."

Other justices seemed to agree, including Justices Sotomayor and Neil Gorsuch. Justice Ginsburg noted that the disclosure, which in multi-ethnic Los Angeles is required in 13 different languages, can be "very burdensome."

Shots - Health News

States fund pregnancy centers that discourage abortion.

However, Justice Sotomayor also pointed out the advertising practices of some of these unlicensed clinics. She observed that on the Fallbrook Pregnancy Resource Center's website there is "a woman on the home page with a uniform that looks like a nurse's uniform in front of an ultrasound machine."

The site further states, "Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures."

The website also indicates that Fallbrook follows all HIPAA regulations. "If they're not a medical provider, they don't have to follow HIPAA," noted Justice Sotomayor.

Defending the law, California's deputy Solicitor General Joshua Klein told the justices the law was not targeted at "pro-life clinics." Rather, he said that most general clinics provide Medicaid which, in California, automatically gives women access to free or low-cost reproductive care, including pre-natal care and abortion.

But Justice Alito pushed back, asking why the law applies only to clinics whose "primary function is providing service to pregnant women." He wanted to know why the law applies only to non-profits and why it exempts individual doctors. "When you put all this together, you get a very suspicious pattern," he said.

If the argument proved one thing it is that there are a lot of unanswered questions about how California applies its law. Those questions are unanswered, because the case went to the Supreme Court at an early stage, without establishing the facts in a trial, and several justices suggested that perhaps the court should send the case back to establish an evidentiary record as to how the law is applied.

Were the Supreme Court to strike down either of the law's provisions, it could well cast doubt on laws in "pro-life states" that require doctors to give extensive information about other options to patients seeking abortions.

In the California case, the Trump administration has a compromise position. It supports the requirement that unlicensed clinics disclose their status to patients, but it views as unconstitutional the provision that compels disclosure about the existence of free or low-cost abortions that the state of California provides.

How Crisis Pregnancy Center Clients Rely On Medicaid

Protecting women from deception or trampling on the "pro-life" message?

"We're simply trying to make sure the recipient of health care information or advice understands exactly what he or she is entitled to in terms of services and that the information is accurate," said California Attorney General Xavier Becerra in defending the law.

That is not how the anti-abortion centers see it.

The law "is requiring a licensed center... that is pro-life and wants to help women choose life, point the way to an abortion," said lawyer Kristen Waggoner, who represents the anti-abortion pregnancy centers that are challenging the California law. That, she adds, "is not simply information."

As for unlicensed centers, she said, there is no need to disclose the lack of a medical license. "They're not doing anything that requires a license," she said, "so why would they need to say that?"

There are plenty of good reasons, replies Nancy Northup, president and CEO of the Center for Reproductive Rights.

California Law Adds New Twist To Abortion, Religious Freedom Debate

"If these fake medical centers had on their front doors, 'We're pro-life centers. We're here to help you decide to continue your pregnancy,' there's nothing wrong with that, and that's fine," Northup said. "But what they're trying to do instead is lure women in on false pretenses."

In recent years, the number of pregnancy centers that counsel against abortion has dramatically increased. Today there are about 2,700 of them around the country, more than three times the number of clinics that provide abortions.

And just as some states provide taxpayer funds for abortions, 14 states directly fund anti-abortion pregnancy centers. From 2001 to 2006, the centers received an estimated $30 million in federal funding.

There is no data on how many of the 2,700 anti-abortion pregnancy centers are unlicensed. But unlicensed clinics offer pregnancy tests, limited ultrasounds, and, to an unskeptical eye, they can look very much like a licensed medical facility.

The personnel wear surgical scrubs or white coats and ask clients to fill out medical history questionnaires. Indeed, many clinics locate next to or across the street from a full service women's reproductive health center and some use similar sounding names.

Manipulating search engines

Do these anti-abortion pregnancy centers deliberately locate close to abortion clinics? "I sure hope so," said anti-abortion advocate Waggoner, "because women should have both options. And they shouldn't see only a provider that has a financial incentive to get them to abort a child." Waggoner represents the National Institute of Family and Life Advocates, NIFLA, an umbrella group of anti-abortion pregnancy centers.

Some anti-abortion pregnancy center personnel are even more blunt.

Jacob Hall is director of services and client care at Care Net, an organization that supports crisis pregnancy centers. At a recent Care Net conference, he advised the centers on how to use search engines to identify key words for their marketing and websites, the object being to attract women searching online for an abortion clinic to an anti-abortion pregnancy center instead.

"I know 'abortion pill' is something people are searching," he said. "'Abortion clinic,' 'abortion clinic near me,' 'abortion cost,'" Hall said. "Fantastic key words if those phrases are on your website. If they're not, easy, just add them. Just say, 'we're here to talk to you about abortion, including abortion pills and abortion surgery.'"

At the same conference, Jana Pinson, director of a crisis pregnancy center in Texas, said she had great success with the term, "planning parenthood." Though her clinic opposes abortion, she changed her website tag to 'The Number One Source of Abortion Information in the Coastal Bend,' "because we are," she said.

Brian Fisher, of Human Coalition, another group that helps anti-abortion clinics, has also advocated using these tactics to attract women seeking an abortion in hopes of derailing their plans. This sort of marketing is necessary, he argued last year, because "the abortion-determined woman will not walk into a pregnancy center voluntarily."

Several women NPR contacted were infuriated by these tactics.

Annie Filkowski went to a clinic because it advertised free pregnancy tests. She spent hours there before learning she was not pregnant, and when she then asked a counselor to write her a birth control prescription or give her advice on which method to use, she said the counselor told her, "Birth control causes infertility and can give you cancer" and other "crazy" things.

Dartricia Walker said she went to a clinic for a pregnancy that she very much wanted. She mistakenly thought it was a medically licensed facility, and that the person who conducted the ultrasound was a nurse. Neither was true. She then had a miscarriage that a doctor later told her might have been avoided had she received adequate medical care.

"I was really upset that I was given the wrong date," Walker said, "because if I had known that I was due sooner, I would have gone sooner to an ob/gyn."

There are excellent clinics that oppose abortion, too. For an example of those, NIFLA, which is challenging the California law, referred us to "Informed Choices," a licensed clinic in Gilroy, Calif., that has a staff of five, including two nurses, plus a volunteer ob/gyn who supervises medical procedures, and 20 other volunteers.

Christine Vatuone, the executive director, said that while the clinic does oppose abortion, and will not refer patients to an abortion provider, all patients are clearly told that they have three options: abortion, adoption and parenting — and that every room in the center has a sign with five promises: "that we will treat them with respect, that we will protect their privacy, that we will not pressure them, that we will support them, and that we will not lie to them."

Still there is room for confusion about the clinic. Google "pregnancy, Gilroy, CA," and the first three results are for Informed Choices, while the fourth is Planned Parenthood.

Google "Abortion, Gilroy, CA" and Informed Choices comes up too.

And "on advice of counsel," the clinic does not display the mandatory language in the California law advising patients that the state provides free access to a full range of care from pre-natal to abortion.

Many patients who seek out clinics that will support their pregnancy say they are thrilled with the counseling and material support clinics like Informed Choices provide, everything from food to baby clothes, diapers, car seats, and emotional support.

"It just gave me that push to let me know that, you know, I can do this," said Laura Wu after visiting a crisis pregnancy center in New York. "It is possible for me to do this alone."

Clarification March 22, 2018

An earlier version of this report said licensed pregnancy centers that do not have a full range of services must provide written notice that the state provides free or low-cost access to prenatal and delivery services, birth control and abortion. Although the California Medicaid program does cover labor and delivery costs, that is not specified in the written notification requirement.

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• Essay on Freedom of Speech in English Free PDF download

Download Important English Essay on the Topic - Freedom of Speech Free PDF from Vedantu

One of the fundamental rights of the citizens of India is ‘Freedom of Speech’. This is allowed to the citizens by a lot of countries to empower the citizens to share their own thoughts and views. This freedom of speech essay is for students of class 5 and above. The language used in this essay is plain and simple for a better understanding of the students. This freedom of speech essay example will help the students write a paragraph on freedom of speech in their own words easily.

Long Essay on Freedom of Speech

The phrase “Freedom of Speech” has been misinterpreted by some individuals who either do not actually understand the meaning of the phrase completely or have a totally different agenda in mind altogether. Every democratic country gives its citizens this freedom. The same is guaranteed by the Constitution of India too. Irrespective of your gender, religion, caste, or creed, you are guaranteed that freedom as an Indian. The values of democracy in a country are defined by this guaranteed fundamental freedom. The freedom to practice any religion, the freedom to express opinions and disagreeing viewpoints without hurting the sentiments or causing violence is what India is essentially made up of.

Indians stand out for their secularism and for spreading democratic values across the world. Thus, to save and celebrate democracy, enforcing freedom of speech in India becomes a necessity. Freedom of speech is not only about the fundamental rights, it’s also a fundamental duty to be done by every citizen rightfully so as to save the essence of democracy.

In developed democracies like the US, UK, Germany or France, we see a “freedom of speech” that is different from what we see in authoritarian countries like China, Malaysia or Syria and failed democratic countries like Pakistan or Rwanda. These governance systems failed because they lacked freedom of speech. Freedom of press gives us a yardstick to gauge the freedom of speech in a country. A healthy, liberal and strong democracy is reflected by a strong media presence in a country, since they are supposed to be the voice of the common people. A democracy that has a stomach for criticisms and disagreements is taken in a positive way. 

Some governments get very hostile when faced with any form of criticism and so they try to oppress any voices that might stand against them. This becomes a dangerous model of governance for any country. For example, India has more than hundred and thirty crores of population now and we can be sure that every individual will not have the same thought process and same views and opinions about one thing. A true democracy is made by the difference of opinions and the respect people have for each other in the team that is responsible for making the policies.

Before making a choice, all aspects and angles of the topic should be taken into consideration. A good democracy will involve all the people - supporters and critics alike, before formulating a policy, but a bad one will sideline its critics, and force authoritarian and unilateral policies upon all of the citizens.

Sedition law, a British-era law, was a weapon that was used in India to stifle criticism and curb freedom of speech during the pre-independence era. Through section 124A of Indian Penal Code, the law states that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual can be fined or jailed or fined and jailed both. This law was used by the Britishers to stifle the freedom fighters. Today it is being used by the political parties to silence criticism and as a result is harming the democratic values of the nation. 

Many laws in India also protect the people in rightfully exercising their freedom of expression but the implementation of these laws is proving to be a challenge. Freedom of speech cannot be absolute. In the name of freedom of speech, hatred, tensions, bigotry and violence too cannot be caused in the society. It will then become ironically wrong to allow freedom of speech in the first place. Freedom of speech and expression should not become the reason for chaos and anarchy in a nation. Freedom of speech was stifled when article 370 got revoked in Kashmir. Not that the government was trying to go against the democratic values, but they had to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Short Essay on Freedom of Speech

Freedom of speech allows the people of our country to express themselves, and share their ideas, views and opinions openly. As a result, the public and the media can comment on any political activity and also express their dissent towards anything they think is not appropriate.

Various other countries too provide freedom of speech to their citizens but they have certain limitations. Different countries have different restrictions on their freedom of speech. Some countries also do not allow this fundamental right at all and the best example being North Korea. There, the media or the public are not allowed to speak against the government. It becomes a punishable offence to criticize the government or the ministers or the political parties.

Key Highlights of the Essay - Freedom of Speech

Every democratic country gives its citizens the Freedom of Speech so as to enable the citizens to freely express their individual views, ideas and concerns. The freedom to be able to practice any religion, to be able to express individual secularism and for spreading democratic values across the world. In order to be able to save and to celebrate democracy, enforcing freedom of speech in India Is essential. Freedom of speech  about fundamental rights is also a fundamental duty of citizens in order to save the essence of democracy.  In a country, a healthy, liberal and strong democracy is always  reflected and can be seen through a strong media presence, as the media are the voice of the common people.  When faced with any form of criticism, we see some governments get very hostile,  and they  try to oppress  and stop any kind of  voices that might go against them. This is not favorable for any country. 

A good democracy involves all the people - all their various  supporters and critics alike, before they begin formulating any policies. India had the Sedition law, a British-era law that is used to stifle criticism and curb freedom of speech during the pre-independence era. The section 124A of Indian Penal Code, this law of sedition stated that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual, then he can be fined or jailed or both. Using  freedom of speech, people spread hatred, unnecessary tensions, bigotry and some amount of violence too in the society. Ironically  in such cases, it will be wrong to allow freedom of speech. The reasons for chaos and anarchy in a nation should not be due to  Freedom of speech and expression. This law was stifled when article 370 got revoked in Kashmir, in order to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Freedom of speech gives people of our country, the freedom to express themselves, to be able to share their ideas, views and opinions openly, where the public and the media can express and comment on any political activities and can also be able to express their dissent towards anything they think is not appropriate. Different countries have different restrictions on their freedom of speech. And it is not proper to comment on that .In Fact, there are some countries which does not allow this fundamental right , for example, North Korea where neither the media nor the public have any right to speak against or even for the government and it is a punishable offense to openly criticize the government or the or anyone in particular.

While freedom of speech lets the society grow it could have certain negative outcomes. It should not be used to disrespect or instigate others. The media too should not misuse it. We, the people of this nation, should act responsibly towards utilizing its freedom of speech and expression. Lucky we are to be citizens of India. It’s a nation that respects all its citizens and gives them the rights needed for their development and growth.

A fundamental right of every citizen of India, the  ‘Freedom of Speech’ allows citizens to share their individual thoughts and views.

FAQs on Essay on Freedom of Speech in English Free PDF download

1. Mention five lines for Freedom of Speech Essay?

i) A fundamental right that is guaranteed to citizens of a country to be able to express their opinions and points of view without any kind of censorship.

ii) A democracy’s health depends on the extent of freedom of expression of all its citizens.

iii) Freedom of speech is never absolute in nature.

iv) New Zealand, USA or UK rank  high in terms of freedom of speech by its citizens.

v) A fundamental right in the Indian constitution is the Freedom of Speech and Expression.

2. Explain Freedom of Speech?

A fundamental right of every citizen of India, Freedom Of Speech allows every citizen the freedom and the right to express all their views, concerns, ideas and issues relating to anything about their country. Freedom of Speech is never actual in nature  and has its limits too. It cannot be used for any kind of illegal purposes.The health of a democracy depends on the extent of freedom of expression of its citizens.

3. What happens when there is no Freedom of Speech?

A country will become a police and military state with no democratic and humanitarian values in it if there is no freedom of speech. Freedom of Speech is a fundamental right for all citizens, and a failure to not being able to express one’s ideas, beliefs, and thoughts will result in a non authoritarian and non democratic country.  Failure to have freedom of speech in a country would mean that the rulers or the governments of those countries have no respect for its citizens.

4. Where can we get study material related to essay writing ?

It is important to practice some of the important questions in order to do well. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. Various essay writing topics, letter writing samples, comprehension passages are all available at the online portals today. Practicing and studying with the help of these enable the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

You can avail all the well-researched and good quality chapters, sample papers, syllabus on various topics from the website of Vedantu and its mobile application available on the play store. 

5. Why should students choose Vedantu for an essay on the topic 'Freedom of Speech’?

Essay writing is important for students   as it helps them increase their brain and vocabulary power. Today it is important to be able to practice some important topics, samples and questions to be able to score well in the exams. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. The NCERT and other study material along with their explanations are very easily accessible from Vedantu.com and can be downloaded too. Practicing with the help of these questions along with the solutions enables the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

6. What is Freedom of Speech?

Freedom of speech is the ability to express our opinions without any fear.

7. Which country allows the highest level of Freedom of Speech to its citizens?

The USA is at the highest with a score of 5.73.

8. Is Freedom of Speech absolute?

No, freedom of speech cannot be absolute. It has limitations.

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Guest Essay

Is This the End of Academic Freedom?

By Paula Chakravartty and Vasuki Nesiah

Dr. Chakravartty is a professor of media, communication and culture at New York University, where Dr. Nesiah is a professor of practice in human rights and international law.

​At New York University, the spring semester began with a poetry reading. Students and faculty gathered in the atrium of Bobst Library. At that time, about 26,000 Palestinians had already been killed in Israel’s horrific war on Gaza; the reading was a collective act of bearing witness.

The last poem read aloud was titled “If I Must Die.” It was written, hauntingly, by a Palestinian poet and academic named Refaat Alareer who was killed weeks earlier by an Israeli airstrike. The poem ends: “If I must die, let it bring hope — let it be a tale.”

Soon after those lines were recited, the university administration shut the reading down . Afterward, we learned that students and faculty members were called into disciplinary meetings for participating in this apparently “disruptive” act; written warnings were issued.

We have both taught at N.Y.U. for over a decade and believe we are in a moment of unparalleled repression. Over the past six months, since the start of Israel’s war on Gaza, we have seen the university administration fail to adequately protect dissent on campus, actively squelching it instead. We believe what we are witnessing in response to student, staff and faculty opposition to the war violates the very foundations of academic freedom.

While N.Y.U. says that it remains committed to free expression on campus and that its rules about and approach to protest activity haven’t changed, students and faculty members in solidarity with the Palestinian people have found the campus environment alarmingly constrained.

About a week after Hamas’s attacks in October, the Grand Staircase in the Kimmel student center, a storied site of student protests , closed indefinitely; it has yet to reopen fully. A graduate student employee was reprimanded for putting up fliers in support of Palestinians on the student’s office door and ultimately took them down; that person is not the only N.Y.U. student to face some form of disciplinary consequence for pro-Palestinian speech or action. A resolution calling for the university to reaffirm protection of pro-Palestinian speech and civic activity on campus, passed by the elected Student Government Assembly in December, has apparently been stuck in a procedural black hole since.

The New York Police Department has become a pervasive presence on campus, with over 6,000 hours of officer presence added after the war broke out. Hundreds of faculty members have signed onto an open letter condemning the university’s “culture of fear about campus speech and activism.”

Such draconian interventions are direct threats to academic freedom.

At universities across the country, any criticism of Israel’s policies, expressions of solidarity with Palestinians, organized calls for a cease-fire or even pedagogy on the recent history of the land have all emerged as perilous speech. In a letter to university presidents in November, the A.C.L.U. expressed concern about “impermissible chilling of free speech and association on campus” in relation to pro-Palestinian student groups and views; since then, the atmosphere at colleges has become downright McCarthyite .

The donors, trustees, administrators and third parties who oppose pro-Palestinian speech seem to equate any criticism of the State of Israel — an occupying power under international law and one accused of committing war crimes — with antisemitism. To them, the norms of free speech are inherently problematic, and a broad definition of antisemitism is a tool for censorship . Outside funding has poured into horrifying doxxing and harassment campaigns. Pro-Israel surveillance groups like Canary Mission and CAMERA relentlessly target individuals and groups deemed antisemitic or critical of Israel. Ominous threats follow faculty and students for just expressing their opinions or living out their values.

To be clear, we abhor all expressions of antisemitism and wholeheartedly reject any role for antisemitism on our campuses. Equally, we believe that conflating criticism of Israel or Zionism with antisemitism is dangerous. Equating the criticism of any nation with inherent racism endangers basic democratic freedoms on and off campus. As the A.C.L.U. wrote in its November statement, a university “cannot fulfill its mission as a forum for vigorous debate” if it polices the views of faculty members and students, however much any of us may disagree with them or find them offensive.

In a wave of crackdowns on pro-Palestinian speech nationwide, students have had scholarships revoked, job offers pulled and student groups suspended. At Columbia, protesters have reported being sprayed by what they said was skunk, a chemical weapon used by the Israeli military; at Northwestern, two Black students faced criminal charges , later dropped, for publishing a pro-Palestinian newspaper parody; at Cornell, students were arrested during a peaceful protest . In a shocking episode of violence last fall, three Palestinian students , two of them wearing kaffiyehs, were shot while walking near the University of Vermont.

Many more cases of student repression on campuses are unfolding.

Academic freedom, as defined by the American Association of University Professors in the mid-20th century , provides protection for the pursuit of knowledge by faculty members, whose job is to educate, learn and research both inside and outside the academy. Not only does this resonate with the Constitution’s free speech protections ; international human rights law also affirms the centrality of academic freedom to the right to education and the institutional autonomy of educational institutions.

Across the United States, attacks on free speech are on the rise . In recent years, right-wing groups opposed to the teaching of critical race theory have tried to undermine these principles through measures including restrictions on the discussion of history and structural racism in curriculums, heightened scrutiny of lectures and courses that are seen to promote dissent and disciplinary procedures against academics who work on these topics.

What people may not realize is that speech critical of Israel’s occupation and apartheid policies has long been censored, posing persistent challenges to those of us who uphold academic freedom. Well before Oct. 7, speech and action at N.Y.U. in support of Palestinians faced intense and undue scrutiny.

Our students are heeding Refaat Alareer’s call to bear witness. They are speaking out — writing statements, organizing protests and responding to a plausible threat of genocide with idealism and conviction. As faculty members, we believe that college should be a time when students are encouraged to ask big questions about justice and the future of humanity and to pursue answers however disquieting to the powerful.

Universities must be places where students have access to specialized knowledge that shapes contemporary debates, where faculty members are encouraged to be public intellectuals, even when, or perhaps especially when, they are expressing dissenting opinions speaking truth to power. Classrooms must allow for contextual learning, where rapidly mutating current events are put into a longer historical timeline.

This is a high-stakes moment. A century ago, attacks on open discussion of European antisemitism, the criminalization of dissent and the denial of Jewish histories of oppression and dispossession helped create the conditions for the Holocaust. One crucial “never again” lesson from that period is that the thought police can be dangerous. They can render vulnerable communities targets of oppression. They can convince the world that some lives are not as valuable as others, justifying mass slaughter.

It is no wonder that students across the country are protesting an unpopular and brutal war that, besides Israel, only the United States is capable of stopping. It is extraordinary that the very institutions that ought to safeguard their exercise of free speech are instead escalating surveillance and policing, working on ever more restrictive student conduct rules and essentially risking the death of academic freedom.

From the Vietnam War to apartheid South Africa, universities have been important places for open discussion and disagreement about government policies, the historical record, structural racism and settler colonialism. They have also long served as sites of protest. If the university cannot serve as an arena for such freedoms, the possibilities of democratic life inside and outside the university gates are not only impoverished but under threat of extinction.

Paula Chakravartty is a professor of media, communication and culture at New York University, where Vasuki Nesiah is a professor of practice in human rights and international law. Both are members of the executive committee of the N.Y.U. chapter of the American Association of University Professors and members of N.Y.U.’s Faculty for Justice in Palestine.

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

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Refresher Course: How free is speech in public schools?

Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.

Civics 101’s host Nick Capodice joins Julia this week to talk about free speech in schools, what students are allowed to express or say and what they aren’t.

You can listen to Civics 101  here , or wherever you get your podcasts.

Nick, tell me about the case that started it all for free speech in schools.

Yeah, there's a bunch of cases about free speech in schools, but the big one is Tinker v. Des Moines [Independent Community School District]. It's a Supreme Court case from 1969. This is the seminal First Amendment case that deals with the freedom of speech in schools.

The central character is Mary Beth Tinker, sort of a personal hero of mine. I've had the great fortune to meet her a couple of times. Mary Beth, her brother John, and some other folks in 1965 wore black armbands to their school. And this was a protest. They were protesting the deaths on both sides in Vietnam. They were expelled for this act of protest. They challenged it, worked its way through the courts and Mary Beth won. The Tinkers won their case 7 to 2. And the famous quote, like the thing anybody should take away from this when they hear it, is from [Justice] Abe Fortas’ decision. He said, “Teachers and students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

And this case created what we call the Tinker Standard, which is this: whatever kids say in school can be protected speech as long as it is not disruptive. That's the magic word, disruptive.

Okay, well, what does disruptive really mean, Nick? I mean, how do we or the courts define that? 

Well, Julia, that's very tricky. You know, like almost all Supreme Court cases when you sort of winnow down to sort of the core of it, to its essence, you got to rule it on a case-by-case basis. Is X disruptive? Is Y disruptive? Threatening speech can be disruptive. Hateful speech can be disruptive. Just yelling in class, just yelling over the teacher, that's a disruption. Anything that disrupts the functioning of a school can be disruptive and therefore not protected speech.

So is disruptiveness the only benchmark when it comes to free speech in schools?

No, not anymore. After Tinker v. Des Moines, lots of other decisions came down throughout the years that tightened restrictions on speech in school, most notably Bethel [School District] v. Fraser. That's a case where a student was punished for making an obscene speech. Fraser lost the case, and the court then said, okay, vulgar speech can also be prohibited in schools.

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And then later, another case, Hazelwood [School District] v. Kuhlmeier, it extended to words in a school newspaper [that] can be censored.

And then the last one, my personal favorite: Morse v. Frederick. Any language referencing drug use can be banned. The court had ruled against a student for holding up a now famous cryptic banner that said “Bong Hits 4 Jesus.”

Well, these standards all seem to be pretty open to different interpretations. I mean, what's disruptive to me might not be disruptive to you. And that also applies to what's obscene or offensive. So how are students supposed to know exactly what they're allowed to say or express in schools and what they're not?

That's really the hard part. And I would like to say that I think it's rather unfortunate that young American students have to be the ones to figure out, well, what can I say and what can't I say if there aren't really clear rules laid out for them?

I guess what you can say is, if it's not disruptive or vulgar, or in a school newspaper or related to drug use, according to Supreme Court precedent, it should be protected speech. However, when schools like the one I went to have, for example, a dress code and other such rules, it can be really hard to find that line between expressing yourself and breaking a school rule.

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HYPOTHESIS AND THEORY article

This article is part of the research topic.

Insights in Sociological Theory: 2022

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

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

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

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

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

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

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

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

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Harvard is named worst school for free speech — scoring zero out of possible 100

Harvard University is officially 2023’s worst school for free speech.

The Foundation for Individual Rights in Education (FIRE) released their annual college free speech rankings on Wednesday, which dubbed the state of free speech at the Ivy League school “abysmal.”

“I’m not totally surprised,” Sean Stevens, director of polling and analytics at FIRE, told The Post. “We’ve done these rankings for years now, and Harvard is consistently near the bottom.”

Despite being the most acclaimed academic institution in the country, Harvard received a 0.00 point free speech ranking on a 100 point scale — a full 11 points behind the next worst school.

FIRE says the dismal score was “generous,” considering Harvard’s actual score was a -10.69, according to their calculations.

Harvard’s score was dragged down by the fact that nine professors and researchers at Harvard faced calls to punished or fired based on what they had said or written — and seven of the nine were actually professionally disciplined.

“I thought it would be pretty much impossible for a school to fall below zero, but they’ve had so many scholar sanctions,” Stevens said.

The score is calculated based on factors including how strong the school’s policies in favor of free speech are and how many professors, students, and campus speakers have been targeted by authorities for their speech.

Bonuses are applied if the school’s administrators stood up for the rights of those whose free speech was threatened.

The rankings also take into account student sentiment about free speech based on polling FIRE conducted in partnership with research firm College Pulse.

Harvard’s lowest rank comes despite the fact that more than 100 of its professors banded together earlier this year to form a Council on Academic Freedom to defend open inquiry on campus.

“We are in a crisis time right now,” Janet Halley, a Harvard Law School professor and member of the Council, told The Post in April. “Many, many people are being threatened with — and actually put through — disciplinary processes for their exercise of free speech and academic freedom.”

Second worst on the list was the University of Pennsylvania in Philadelphia, followed by the University of South Carolina in Columbia, Georgetown University in DC, and Fordham University in the Bronx and Manhattan.

Although Columbia University took the prize of worst school for free speech last year, it ranked 214th out of 248 this time around.

The number one school for free speech was Michigan Technological University in Houghton, Michigan. The school earned 78.01 out of 100 possible points. 

“I’m not necessarily surprised that a technological school has a better speech climate, primarily for the reason that they don’t really talk as much about controversial topics,” Stevens said. “They’re there to make things work as engineers.”

Auburn University, the University of New Hampshire, Oregon State University, and Florida State University rounded out the top five.

FIRE’s survey of 55,000 current students from 254 universities also yielded some staggering results.

56% of students worry about getting cancelled for something they said, and 27% said it’s acceptable to use violence to stop campus speech in some circumstances.

As FIRE continues to be inundated with allegations of free speech violations, Stevens says the erosion of campus discourse should concern everyone.

“I’d say the state of free speech on campus is stagnant at best, and possibly a little worse than last year.”

• Misinformation & Disinformation

What to Know About Elon Musk’s Battle With a Brazilian Judge Over Speech on Social Media

W hen billionaire Elon Musk acquired Twitter—now X—in 2022, some feared that the self-avowed free-speech “absolutist” would turn the platform into a free-for-all for disinformation . Now, as a Brazilian judge seeks to crack down on fake news on social media, he and Musk have found each other at odds in a growing spat that could have significant consequences for Musk, Brazil, and X.

On Saturday, X’s Global Government Affairs team posted that it had been forced to block “certain popular accounts in Brazil” without, in its view, sufficient explanation. It was prohibited, it said, from publicizing what accounts were impacted as well as what court or judge issued the orders.

“We believe that such orders are not in accordance with the Marco Civil da Internet or the Brazilian Federal Constitution, and we challenge the orders legally where possible,” the post said. “The people of Brazil, regardless of their political beliefs, are entitled to freedom of speech, due process, and transparency from their own authorities.”

X Corp. has been forced by court decisions to block certain popular accounts in Brazil. We have informed those accounts that we have taken this action.  We do not know the reasons these blocking orders have been issued.  We do not know which posts are alleged to violate the… — Global Government Affairs (@GlobalAffairs) April 6, 2024

Tensions escalated when Musk, in a series of posts, called out the judge, Brazil’s Federal Supreme Court Justice Alexandre de Moraes, by name and said X would not abide by his orders no matter the consequences. Musk later said de Moraes ordered the suspension of accounts belonging to “sitting members of the parliament and major journalists.”

“These are the most draconian demands of any country on Earth!” Musk said in one post .

“We will probably lose all revenue in Brazil and have to shut down our office there,” he said in another. “But principles matter more than profit.”

“This judge has brazenly and repeatedly betrayed the constitution and people of Brazil,” he said in another. “He should resign or be impeached.”

In turn, de Moraes issued a decision Sunday saying he would include Musk in his larger investigation as well as initiate a new inquiry specifically into the X owner, whom he accused of obstruction of justice and incitement to crime—actions, in the judge’s description, that “disrespect Brazil’s sovereignty.”

X has not responded to TIME’s request for comment. Here’s what to know about the situation.

Who is Alexander de Moraes?

De Moraes was appointed to Brazil’s Supreme Federal Court in 2017 after previously serving as Minister of Justice and Public Security. He has also served as president of the country’s electoral tribunal since 2022 and is known as a crusader against anti-democratic forces in Brazil.

As a justice, de Moraes has ordered investigations into former President Jair Bolsonaro and his involvement with the post-election capitol riots in Brasilia last year . He has also jailed some of Bolsonaro’s supporters for what he claims to be attacks on Brazil’s democratic institutions .

Since 2019 , De Moraes has led an investigation into Brazil’s so-called “digital militias” —purveyors of fake news for political or ideological groups—that have been verbally attacking court members.

In March 2022, de Moraes ordered the nationwide suspension of Telegram , a platform used heavily by Bolsonaro and his supporters, for its alleged failure to shut down disinformation networks. Just ahead of the October 2022 presidential election runoff between Lula da Silva and Bolsonaro, the electoral tribunal gave de Moraes unilateral power to order tech companies to remove online posts and videos under the threat of suspension in Brazil .

Right-wing politicians, including Bolsonaro, have accused de Moraes of overstepping his authority and abusing his power , though many of de Moraes’ defenders argue that the judge’s approach is sound, given the fragility of democracy in the country.

How has Brazil’s government responded to Elon Musk?

On Sunday, de Moraes warned against Musk’s decision to defy the order on blocking certain accounts, saying that each reactivated account would entail a fine of 100,000 reais ($20,000) per day.

Brazil’s attorney general Jorge Messias also reacted on X, saying that it is “urgent” that Brazil regulate social media networks operating in the country.

“We cannot live in a society in which billionaires domiciled abroad have control of social networks and put themselves in a position to violate the rule of law, failing to comply with court orders and threatening our authorities,” Messias said . “Social peace is non-negotiable.”

In a separate post , Brazilian lawmaker Orlando Silva said Musk has disrespected the country’s judiciary, adding that he would propose legislation on a “responsibilities regime for these digital platforms.”

“We have reached a limit,” Silva said. “It is a response in defense of Brazil.”

And Brazil’s Secretary of Social Communication Paulo Pimenta posted on X in response to de Moraes’ opening of an investigation into Musk: “We will not be intimidated. Our Country is sovereign and no one is going to impose their authoritarian will and enforce the logic that money makes their ‘business model’ above the Federal Constitution.”

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