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Freedom of speech.

• Jonathan Riley Jonathan Riley The Murphy Institute, Tulane University
• https://doi.org/10.1093/acrefore/9780190228637.013.234
• Published online: 26 February 2018

John Stuart Mill is a liberal icon, widely praised in particular for his stirring defense of freedom of speech. A neo-Millian theory of free speech is outlined and contrasted in important respects with what Frederick Schauer calls “the free speech ideology” that surrounds the First Amendment of the U.S. Constitution, and with Schauer’s own “pre-legal” theory of free speech. Mill cannot reasonably be interpreted to defend free speech absolutism if speech is understood broadly to include all expressive conduct. Rather, he is best interpreted as defending an expedient policy of laissez-faire with exceptions, where four types of expression are distinguished, three of which (labeled Types B, C, and D) are public or other-regarding, whereas the fourth (labeled Type A) is private or self-regarding. Types C and D expression are unjust and ought to be suppressed by law and public stigma. They deserve no protection from coercive interference: they are justified exceptions to the policy of letting speakers alone. Consistently with this, a moral right to freedom of speech gives absolute protection to Type B public expression, which is “almost” self-regarding. Type A private expression also receives absolute protection, but it is truly self-regarding conduct and therefore covered by the moral right of absolute self-regarding liberty identified by Mill in On Liberty . There is no need for a distinct right of freedom of expression with respect to self-regarding speech. Strictly speaking, then, an expedient laissez-faire policy for public expression leaves the full protection of freedom of private expression to the right of self-regarding liberty.

An important application of the neo-Millian theory relates to an unjust form of hate speech that may be described as group libel. By creating, or threatening to create, a social atmosphere in which a targeted group is forced to live with a maliciously false public identity of criminality or subhumanity, such a group libel creates, or significantly risks creating, social conditions in which all individuals associated with the group must give up their liberties of self-regarding conduct and of Type B expression to avoid conflict with prejudiced and belligerent members of society, even though the libel itself does not directly threaten any assignable individual with harm or accuse him or her of any wrongdoing of his or her own. This Millian perspective bolsters arguments such as those offered by Jeremy Waldron for suppressing group libels. America is an outlier among advanced civil societies with respect to the regulation of such unjust hate speech, and its “free speech ideology” ought to be suitably reformed so that group libels are prevented or punished as immoral and unconstitutional.

• First Amendment
• self-regarding liberty
• other-regarding expression
• laissez-faire doctrine
• types of expression
• hate speech
• group libel

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Your Right to Free Expression

Getting an education isn’t just about books and grades – we’re also learning how to participate fully in the life of this nation. (Because the future’s in our hands!)

But in order to really participate, we need to know our rights – otherwise we may lose them. The highest law in our land is the U.S. Constitution, which has some amendments, known as the Bill of Rights. The Bill of Rights guarantees that the government can never deprive people in the U.S. of certain fundamental rights including the right to freedom of religion and to free speech and the due process of law. Many federal and state laws give us additional rights, too.

The Bill of Rights applies to young people as well as adults. And what I’m going to do right here is tell you about FREEDOM OF EXPRESSION.

WHAT DOES FREEDOM OF EXPRESSION ACTUALLY MEAN?

The First Amendment guarantees our right to free expression and free association, which means that the government does not have the right to forbid us from saying what we like and writing what we like; we can form clubs and organizations, and take part in demonstrations and rallies.

DO I HAVE A RIGHT TO EXPRESS MY OPINIONS AND BELIEFS IN SCHOOL?

Yes. In 1969 in Tinker v. Des Moines Independent Community School District the Supreme Court held that students in public schools – which are run by the government – do not leave their First Amendment rights at the schoolhouse gate. This means that you can express your opinions orally and in writing – in leaflets or on buttons, armbands or T-shirts.

You have a right to express your opinions as long as you do so in a way that doesn’t “materially and substantially” disrupt classes or other school activities. If you hold a protest on the school steps and block the entrance to the building, school officials can stop you. They can probably also stop you from using language that they think is “vulgar or indecent,” so watch out for the dirty words, OK?

Also, school officials may not censor only one side of a controversy. If they permit an article in the official school paper that says that premarital sex is bad, they may not censor an article that says premarital sex is good.

WHAT ARE WE ALLOWED TO SAY IN A SCHOOL PAPER?

Keep in mind – private schools have more leeway to set their own rules on free expression than public schools do.

It depends on whether the school is paying for producing the paper. If it is a completely student-run paper that you want to hand out in school, the school may not censor what you say or stop you from handing it out as long as the paper is not “indecent” and you do not “materially and substantially” disrupt school activities. (The school may place reasonable limits on the “time, place or manner” of handing it out.) The same rule applies to leaflets or buttons that you have created and paid for.

In the official school paper, however, you might have a problem publishing an article that discusses important but controversial issues like sex education, condom distribution, or drug abuse. That’s because of a 1988 Supreme Court decision, Hazelwood School District v. Kuhlmeier. It said public school administrators can censor student speech in official school publications or activities — like a school play, art exhibit, newspaper or yearbook — if the officials think students are saying something “inappropriate” or “harmful” even if it is not vulgar and does not disrupt.

Some states — including Colorado, California, Iowa, Kansas and Massachusetts — have “High School Free Expression” laws that give students more free speech rights than the Constitution requires. Check with your local ACLU to find out if your state has such a law.

CAN WE SLAM A REALLY BAD TEACHER IN THE SCHOOL PAPER?

In your own publication, it’s your right to criticize how the people who run your school do their jobs. But you can’t print something about your teacher that you know or should know isn’t true that makes him or her look bad. That might be libel, and that could get you into trouble.

IS MY SCHOOL ALLOWED TO HAVE A DRESS CODE?

It depends on what state you live in. In some states, students can wear their hair any way they want as long as it’s not a safety hazard (like if your hair is very long, you have to tie it back during a science experiment). Courts in other states allow school hair codes – and where hair codes are permitted, so are dress codes. Check with your local ACLU about the laws in your state.

If you think your school’s dress codes and hair codes are unfair and you want to challenge them, be aware that a court probably won’t overturn the codes unless the judge finds that they’re really unreasonable, or that they’re discriminatory.

DO I HAVE TO SAY THE PLEDGE OF ALLEGIANCE?

No. The Supreme Court has held that it is just as much a violation of your First Amendment rights for the government to make you say something you don’t want to say as it is for the government to prevent you from saying what you do want to say. You have a right to remain silently seated during the pledge.

CAN THE SCHOOL LIBRARY REFUSE TO STOCK CERTAIN BOOKS?

This is a very complicated issue. Schools certainly have the right to pick the books they think have the greatest value for their students and to reject those that they believe have little value. On the other hand, if the school refuses to stock a book for “narrowly partisan or political,” reasons – i.e., they just don’t agree with the authors’ viewpoints – that’s censorship and censorship is unconstitutional. In a 1982 case called Island Trees v. Pico, the Supreme Court ruled that school boards can’t remove books from a school library just because they don’t agree with their content. But in many communities around the country, school administrators and librarians are under heavy pressure from religious and other groups to censor what we read and study.

If you believe that your school is censoring books because of their viewpoints, you, your teachers and the school librarian can challenge book censorship at your school or in court. The freedom to read is the freedom to think – and that’s totally worth fighting for!

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech . . . at the schoolhouse gates.” –U.S. Supreme Court, Tinker v. Des Moines (1969)

We spend a big part of our life in school, so let’s speak up! Join the student government! Attend school meetings! Petition your school administration! Talk about your rights with your friends! Don’t forget, we are the future!

Produced by the ACLU Department of Public Education. 125 Broad Street, NY NY 10004. For more copies of this or any other Sybil Liberty paper, or to order the ACLU handbook The Rights of Students or other student-related publications, call 800-775-ACLU or visit us on the internet at https://www.aclu.org .

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Limits on Free Expression: An International View

While many countries recognize freedom of speech as a fundamental value, every country also imposes some legal limits on free speech.

A new  report  from the Law Library of Congress surveys the legal limitations on free expression in thirteen countries: Argentina, Brazil, Canada, China, Israel, Japan, Germany, France, New Zealand, Sweden, the Netherlands, the United Kingdom, and Ukraine.

“In particular, the report focuses on the limits of protection that may apply to the right to interrupt or affect in any other way public speech. The report also addresses the availability of mechanisms to control foreign broadcasters working on behalf of foreign governments,” wrote Ruth Levush in the document summary. See  Limits on Freedom of Expression , Law Library of Congress, June 2019.

Some other noteworthy recent reports from the Law Library of Congress include the following.

Initiatives to Counter Fake News in Selected Countries , April 2019

Regulation of Artificial Intelligence in Selected Jurisdictions , January 2019

Congress should foster a more responsive and evidence-based ecosystem for GenAI-powered educational tools, ensuring that they are equitable, effective, and safe for all students.

Without independent research, we do not know if the AI systems that are being deployed today are safe or if they pose widespread risks that have yet to be discovered, including risks to U.S. national security.

Companies that store children’s voice recordings and use them for profit-driven applications without parental consent pose serious privacy threats to children and families.

Privacy laws are only effective if they include civil rights protections that ensure personal data is processed safely and fairly regardless of race, gender, sexuality, age, or other protected characteristics.

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The world’s fact-checkers affirm fact-checking as essential to free speech because it requires openness, transparency and preservation of information

The international fact-checking network issues sarajevo statement on freedom of expression and fact-checking.

At the annual meeting of the world’s fact-checkers in 2024 in Sarajevo, Bosnia and Herzegovina — our 11th GlobalFact meeting — it is time to restate our longstanding commitment to access to information and freedom of expression, for all people and across borders.

All people have the right to seek, receive and impart information and ideas. Fact-checking is deeply rooted in these principles. Fact-checking requires the right and ability to find sources, read widely and interview experts who are free to speak candidly — all as part of a rigorous methodology and process. This is the foundation on which all true fact-checking is built. Fact-checking is part of a free press and high-quality journalism, and it contributes to public information and knowledge.

Fact-checking seeks to provide additional information, setting out evidence to correct and clarify messages that are false, misleading or lack important context. Fact-checking does not seek to expunge or erase these messages, but to preserve them as part of the public debate while offering evidence necessary to accurately inform that debate.

Despite this, fact-checkers have in recent years been relentlessly attacked as online censors, and after such attacks many have been subject to verbal abuse, doxxing, coordinated attacks, legal threats, political pressure, and even physical violence. However, as an expression of speech, fact-checking cannot be considered censorship in any true sense of the word. Censorship removes information. Fact-checking adds it.

There have been and will be necessary debates about how media and online companies host speech; how tech platforms curate and moderate public posts; and how society as a whole should define and handle illegal or harmful speech. While some information may be removed if it causes actual harm, a false claim should not be removed solely because it is false. Instead, the public should be provided with the appropriate context and verification in order to determine the claims’ veracity. At the same time, false claims should not be rewarded with popularity or virality. Additionally, with the arrival of new artificial intelligence (AI) tools, there is a growing awareness of their potential to spread false information, and the need for accuracy is more important than ever.

The public has a need for accurate information in order to make decisions about their governments, their economies, their health and all aspects of their lives. Fact-checking is a key part of giving the public accurate information and improving information ecosystems.

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