free speech is non negotiable meaning

Free Speech is Non-Negotiable

by Peter R. Quiñones | Dec 17, 2019

Anyone trying to shut down free speech knows that their ideology is a lie so they must prevent you from exposing that fact. I have no problem listening to someone else’s opinion, especially if I know it’s dead wrong. Knowing that my ideology is moral and non-coercive helps immensely. Free speech has been under attack since the beginning of time by people in power, those who seek it, or by those who just want to control you and your thoughts. It has nothing to do with words on a piece of paper; you are born with the ability to say what you want. The only time an argument could be made that your speech is “damaging” is if you are directing an individual, or group of individuals, to do harm against another’s person or property. Even then the argument could be made that if the people choosing to follow the orders are doing so voluntarily you still could be without blame. When you’re having a conversation with someone about free speech and they say, for example, “hate speech has no right to be spoken and is not free speech,” what do you say? How much do your opinions and beliefs mean to you? If someone says punch all Nazis AND anyone who promotes free speech, how do you address that?   

An argument that eventually comes up is the collective stupidity of masses of people. That, if we allow those who are good communicators free reign to preach “wrong think” to multiples of malleable idiots, we could have another Mao, Stalin or Hitler pop up. How is that any different than the system now? Politicians have traded the wacky uniforms of the aforementioned dictators for “respectable” suits and a language of inclusivity. While that may appear to be only fair, it in fact riles up a small minority against the rest who are going about their lives. Where in the past rulers sought to mobilize the larger segment of the population against a minority who they made out to be villains (Jews in Germany, gypsies anywhere in Europe, Native Americans), they now give political power to an alleged oppressed few to demonize huge swaths of the population (“anyone who supports Trump is a white supremacist,” or a “Russian-sympathizer,” effectively putting half of the country in their cross-hairs). And their parrots in the corporate press play cheerleader.  

A Smaller Example  

One place the mass of wannabe dictators tries to shut down libertarians is when it comes to “private business.” So, how do they employ this tactic?  

Libertarians believe in unfettered markets which means they don’t want a government or any authority with a monopoly on force and law to be able to make rules or regulations that they get to dictate and change at will. The market will always come up with its own rules that will undoubtedly pave the way for progress and innovation. But that doesn’t mean that liberty-motivated people won’t be able to look at the way a company is doing business and criticize them or flat out call them a fraud. That’s just free speech which also has its own checks and balances in a free market. When someone engages in the argument that because Company A is private, therefore you can’t criticize them for, say, firing an employee because they wrote a memo a minority of people found offensive, they are purposefully being dishonest or just plain stupid. A little prodding and it should be evident which.   

Imagine this argument in practice. Someone of the libertarian persuasion shops at Auto Shop A and is sold a defective tire that has a blowout after 50 miles. It happened on the highway while travelling at 75 MPH causing their vehicle to veer left sharply almost taking out 2 other cars in the process. Say the consumer goes back to business, informs them of the incident, and the shop-owner says, “Sorry, all sales are final. Neither we, nor the manufacturer are liable to replace or refund tires once they leave the shop.” Granted, the business has every right to have this policy. But if that person took to social media to warn people against shopping at this business citing his experience, some who would wish to play “gotcha” on free speech might inevitably say, “You support unfettered free markets bro, you can’t criticize them for the way they run a private business.” All the while knowing that if it happened to them, they would have a conniption and be spewing venom about how “the free market has failed them.”  Of course  the libertarian is warranted in warning other people of what he’s experienced. But there are still wannabe-dictators out there who would rather see people crash and die than admit their desire to limit speech is lunacy.  

Speech is all about ideas and anyone seeking to limit them is in a very real sense seeking to control your mind. If you’ve ever had the thought, “I can’t say that out of fear of how it will be perceived and the consequences I might face,” it is a prime example of this technique. We’ve even seen people flying the “Libertarian” banner employing these tactics; especially in the “Age of Trump.” It’s sad that many are compelled to not speak their minds or share ideas that may benefit others out of fear that a minority may demonize them. It’s even sadder to see people “promoting” an ideology of liberty joining forces with them.  

About Peter R. Quiñones

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• We Should Be Morally Judgmental Again
• There’s More to Libertarianism Than Trump or Bitcoin
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ARGUMENTS FOR AND AGAINST FREE Speech

Arguments for free speech, belief in free speech means supporting the concept itself - not just speech you agree with, marginalized groups and minorities benefit the most from free speech protections, successful challenges to power always have to start on a foundation of free speech.

It has become common on the liberal-left to think of controlling speech as a way of conferring power on and protecting the marginalized. This view misidentifies the real nature of power and offers up a tool for the dominant elites to maintain the status quo.

Pro free speech doesn't mean absolutist support for all speech

Context is critical, and yes, you can yell fire in a crowded theater if there really is a fire. At the same time one person’s misinformation is another person’s prescient warning. The problem is always: who decides?

In the U.S. we don’t allow speech that directly leads to imminent violence. We have defamation laws that constrain speech to limit individuals from knowingly making false or untrue statements.

The specific application of speech limits will always be subject to debate, as it should be. The lines may be clear in some cases and not at all clear in others.

Our ideas are fragile if they can't withstand challenge

Free thought depends on free speech; censorship leads to a culture of fear where people learn to hide their real opinions.

This pressure to conform can come in many forms. It may be enforced through externally applied rewards or punishments or through more subtle internalized adjustments that we make as individuals to align how we think with how we know the group wants us to think.

Expressing approved opinions is rewarded by the group with attention and respect, and materially, with jobs and other concrete benefits.

Expressing opinions which diverge from the group leads to punishments which mirror the rewards–derision, mockery, cancellation and worst of all, ostracism.

As a result we have a strong tendency to adjust personal thoughts to match our public pronouncements.

To stay in line with the group we develop a number of strategies. We learn to self-censor. We submit to rituals of thinly disguised compelled speech such as forced apologies. We parrot blatantly compelled speech. And we join our own voices with the mob or the state in supporting explicit suppression of unwanted speech.

The more this split between private thought and public expression grows, the more difficult it is to know what people actually think. Then it becomes more and more difficult to develop ideas that challenge or stray from the consensus.

Blasphemy–a notion that crystallizes so many of the issues around free speech

The struggle against the power of the church in the West has an important place in the history of the left. Without a commitment to free speech, the unlimited authority of the medieval church could never have been challenged. Blasphemy may not be high on the list of liberal-left concerns, but it is one of the clearest examples of how restricting free speech serves the powerful interests of the status quo.

Speech is not violence, it’s an alternative to violence

Physical violence does not make any distinction of this sort. A hammer doesn’t care who’s head it strikes. To conflate speech with violence takes away from our ability to think clearly about them both.

It is also true that words, even the most harsh and cruel words, are preferable to violence. They are society’s substitute for violence. They allow us the possibility to organize ourselves in forms of cooperation and equality that go beyond brute domination by force.

Speech can be powerful and hurtful, but in the context of political struggle it is a preferable replacement for physical violence.

It is through discourse and debate that we exchange ideas, dialogue, innovate, and progress. Once we conflate speech with violence, we run the risk of creating a culture of punishing some people for certain speech, ultimately creating a tiered system of allowable speech versus prohibited speech. When we say speech equals violence, the responsibility no longer falls on the offended party to manage their emotional response, it falls to the offender who must preemptively regulate their own speech to avoid giving offense.

Equating speech with violence is often simply a way to shut down debate. Calling speech ‘literal violence’ is similar to carelessly calling everyone you disagree with a fascist. It blurs the meaning of words and takes away our ability to make the real distinctions that we need to understand our world. When you’ve been calling everyone you disagree with a fascist, what words do you have left to designate a real fascist when they appear? If you carelessly equate speech with physical violence you have crippled your own ability not just to describe but to even recognize the difference.

One corollary of the belief that speech is violence is a belief that we have somehow reached the end of history where the lessons of the past no longer apply; everything has changed. This justification for ignoring the past reminds us of the dot com era of the 90s when it was widely believed that the old rules of business and capitalism no longer applied–until it became clear that the old rules were still very much in force and it was only the wealth of society that had changed hands on an unprecedented scale.

Free Speech protection for all is inherently anti-authoritarian

Common arguments against free speech, free speech isn’t free, someone always pays the price.

Ibram X Kendi explains how he went from being a defender of free speech to his current position that certain speech should be banned. In this article, When Free Speech Becomes Unfree Speech , he makes this case:  “I thought I was defending..free speech… when, in fact, I was merely defending unfree speech. Just like we should not have the freedom to enslave people, we should not have the freedom to publish untruths about people.” He goes on to make a distinction between ‘factual’ and ‘unfactual, lying’ speech’.

Kendi starts from the premise that there is a known ‘truthful’ speech that should be allowed. He is saying that this good speech can be differentiated from ‘wrong’ speech which should be forbidden.

Kendi is recycling one of the oldest anti-free speech arguments. Although Kendi’s position comes wrapped in the protective gloss of genuinely righteous causes of antiracism and social justice, his argument is no more than a restatement of ‘free speech is speech I approve of..’.

To invest any person or group of people with the power to decide what everyone else is allowed to think and say, even if initially done in support of a good cause, is to support thinly disguised authoritarianism.

Speech is Literal Violence

The basis for many of the arguments against free speech spring from the idea that speech is literal violence. Some, like Northeastern University professor Lisa Barret, make the case that speech can cause actual neurological damage: “It can have a metabolic effect on the neurons, potentially leading to depression and even heart disease… scientific evidence shows that verbal aggression causes stress similar to that triggered by physical aggression and some forms of sexual abuse.”

Most supporters of free speech do not reject the idea that speech can be hurtful. Undeniably, in some circumstances speech can cause damage and psychological trauma. This doesn’t make it the same thing as physical violence. Former ACLU president Nadine Strossen makes the important point that unlike physical violence, the effect of speech depends on how it is perceived by the listener. The same words can literally have the opposite effect depending on who is hearing or reading them. Many religions consider blasphemy to be the most dangerous of all speech, and historically it has even been worthy of the death penalty. But one person’s blasphemy will be another person’s expression of their most heartfelt beliefs.

It is also true that words, even the most harsh and cruel words, are preferable to violence. They are society’s substitute for violence. They allow us the possibility to organize ourselves in forms of cooperation and equality that go beyond brute domination by force. Speech can be powerful and hurtful, but in the context of political struggle it is a preferable replacement for physical violence.

Free Speech is actually just license for racists and bigots to spew hate

Racists and bigots disingenuously use the free speech concept as a bad-faith cover for doing what they really want to do; spew their hatred. They are simply weaponizing the free speech argument for political, financial, or perhaps monetary gain. And it follows, therefore, that racists and bigots don’t actually deserve to be heard and should certainly not be given a platform to spread their harmful ideas.

It is critical to be alert to the misuse of free speech advocacy as a cover for partisanship. The fact that right wing conservatives of various stripes may be insincere or hypocritical in their expressed support for free speech, and that it can even provide a cover for other motives, doesn’t argue against the value of free speech itself.

No one wants to allow an opposing ideology to decide what speech is ‘legitimate’ and what is harmful. That is why genuine free speech advocacy means supporting everyone’s right to free speech–even speech that you don’t agree with. The ideal of free speech can be misused by people on any portion of the political spectrum to serve partisan interests. But genuine free speech protections need to go beyond partisan considerations and be fashioned to stay relevant over time and in different circumstances where power may have changed hands.

Banning certain speech prevents harm, is for a good cause, and therefore the ends justify the means

We have woken up to the many injustices of our society and its history of racism and oppression, this argument goes, and we find ourselves in a place where we can clearly see the damage that is inflicted by certain speech and the ways in which it perpetuates the larger harms of society. Given that we understand the sources of the brutality and injustice that surrounds us, we’re wrong to not use every tool possible to make things better. Certain speech perpetuates these wrongs. Therefore, it is not only right for us to do everything possible to suppress this speech but is morally necessary. To allow this hurtful speech is to be complicit in the harms which it causes.

Banning hate speech, according to the argument that the ends justify the means, would not only be good but essential. But a look at the real world, past and present, tells us that outlawing speech, even hate speech, does not eliminate or reduce hatred and intolerance. The Weimar Republic had strict hate speech laws that included prohibition of antisemitic speech. Present day Germany and France have hate speech laws, yet the far right is growing stronger and draws closer to the levers of power every year.

Suppressing speech never eliminates the ideas behind the speech. In many cases this suppression lends these ideas a forbidden aura that makes them even more powerful and attractive.

Free speech is a tool of oppression by the powerful and a gateway to fascism

Proponents of so-called free speech fail to see that it’s the powerful who have, and have always had, the platform to express their views. What they call ‘cancel culture’ is really the marginalized and most oppressed of society finally able to speak up and make their own voices heard. What they perceive as suppressing ‘free speech’ is just the voice of regular people finally being heard. This makes those in power uncomfortable–particularly on social media, where what they see as an unruly mob is really just voices speaking up against racism and bigotry. They hide this discomfort and their fear under the guise of supporting free speech, when what they really mean is favoring the speech of those who already have all the power.

Cancel culture is real and it has ruined the lives of regular people time and time again. The liberal-left finds comfort in the belief that cancel culture is just the fevered imagination of right wing conservatives. But they ignore the actual stories of real people whose lives have been damaged.

It is very sad that people who consider themselves ‘leftists’ and devoted to social justice are able to ignore how the reality of cancel culture strikes the most vulnerable and weakest. They ignore, as well, the glaring fact that the most powerful, the giant corporations, the arms manufacturers, the financial institutions, the tech giants, the military, the security agencies, all of the very most powerful of our society pledge full allegiance to every aspect of oppression politics. When Goldman Sachs, Raytheon and Google are all on your side, can you really believe that you are challenging power?

In fact, speech protections favor minority interests the most. As Ira Glasser, former head of the ACLU has repeatedly argued :

“If you give the government the power to ban speech, your speech is gonna be the first speech banned. The only protection minorities have and dissenters have is a rule which doesn’t allow the government to decide which speech is okay because it won’t be theirs. … “

Nadine Strossen also points out: “Observation and international human rights organizations reveal that there is a pattern of disproportionately enforcing any restriction on speech, including hate speech restrictions which do exist in the laws of most other countries, disproportionately against speech by and on behalf of minority groups. This includes demographic minorities — racial, religious, ethnic minorities, and so forth, and political minorities like dissident protesters. And that is true regardless of who is doing the enforcement. Whether it is the government, a private university, or a private sector media company.”

From a leftist point of view that looks at class differences as the central power divide, these campaigns against ‘hate speech’ have successfully divided and diverted the left. Policing harmful speech is not a challenge to power. On the contrary, it has been successfully adopted and co-opted by power and serves to divert us from uniting in ways that genuinely challenge injustice.

Laws against hate speech reduce intolerance and prevent the rise of fascism

If we ban obvious hate speech and don’t allow certain groups or individuals to have a platform to spread their ideas, those ideas will fade away. Conversely if we allow them a platform, if we keep their books on the shelves, allow them to speak at our universities and say hateful things, those ideas will spread. We’re just making the world safer by not allowing hateful, bigoted speech, for example antisemitic speech which we know leads to violence. Many countries have strong hate speech laws for that reason–they know from their historical experiences what allowing this kind of speech leads to.

There is no Truth but My Truth ('stay in your lane')

We all have different lived experiences; it is impossible for you to judge mine or for me to judge yours. Performative privilege is a manipulation tactic rooted in narcissism whereby a member of a dominant group attempts to center themselves ahead of marginalized groups in order to make themselves feel better and ease their guilt. Some seek not to identify with the oppressed, but to deny their very existence. Defense of ‘free speech’ is no more than a hypocritical laundering of hateful views, including racism, homophobia, and transphobia. These hateful views are violent and incompatible with constitutional mandates that guarantee protections to citizens. At what point do we undermine these values in the name of free speech?

There is nothing inherent in this ideology of identity politics that places it above public debate. All ideas need to stand on their own, and no ideas are above question. For example, conflating disagreements on the relative importance of identity versus class with hate and violence is a tactic used to shut down conversation and dilutes the meaning of what it is to be violent.

The first amendment is protection against state censorship but is irrelevant to social media

Most of the debate around free speech in the U.S. mistakenly focuses on the First Amendment. But the First Amendment has nothing to do with the private sector or with social media in particular. When social media companies block accounts, that is not censorship, it’s just the opposite–it’s the private company exercising their own right to free expression. They have the right to decide what is allowed on their own platforms. The First Amendment and protection of speech are only relevant where the government directly acts to censor freedom of expression.

This is true up until the point that the government pressures technology platforms to institute censorship policies. When this happens, the tech platforms are acting as the agent of the government and representatives of state interests. This brings the First Amendment back into relevance.

It is also true that boundaries between corporate power and government authority are not what they were when the First Amendment was written. We exist in a system where the largest corporations exert power over politicians and not the reverse. Arguing that free speech protection is only the responsibility of the government and not the corporations who own the government is a form of legalistic denial that ignores the reality of actual power relationships.

There is a global context as well that should be a central part of leftist concerns over free speech but which tends to get left out of the conversation. Big Tech and governments have been collaborating for many years. The US government, military, law enforcement, and other agencies have ongoing contracts with various tech companies, including Google, Amazon, Microsoft, Dell, etc. While their contracts are largely secretive, we do know that together they have carried out widespread surveillance campaigns, targeting civilians, wiretapping communications, and amassing swaths of data under the guise of “security.”

Elsewhere, Apple has worked with foreign governments (and continues to do so) to censor political content around the world, notably in mainland China, Hong Kong, and Taiwan. Zoom worked with the Chinese government to terminate accounts of US-based users and interrupt video calls mentioning keywords like the 1989 Tiananmen Square Massacre.

At what point, then, is it acceptable to say “It’s a private company, tech companies can do whatever they want” considering their close relationship with governments all around the world?

Tech companies serve as the new digital town square — our laws are simply too outdated to reflect life in the digital age. The boundaries between corporations and governments have become so blurred that in these crossover relationships a revolving door has been created between tech giants and governments. Despite this, proponents of government regulation still extol the ‘private company’ argument to justify online censorship.

Read the Paradox of Tolerance to understand why some speech needs to be suppressed

The fascist right knows that our society’s permissiveness, diversity, and freedom of expression can be used against us. It can be the perfect trojan horse to spread their hateful ideology, grow powerful and ultimately take control. The paradox is that to protect our tolerant society we need to be intolerant of these ideologies. – The Open Society and Its Enemies, Karl Popper

The phrase ‘the paradox of tolerance’ comes from a 1946 book written by an Austrian Jew named Karl Popper.Popper’s grandparents converted to Christianity, no doubt to escape the millenia long tradition of intolerance to which they would have been subject as Jews. His book was called The Open Society and Its Enemies, and his idea of the paradox of tolerance has gained considerable popularity among the liberal-left. What did he say exactly?

Popper’s discussion of the paradox of tolerance is limited to a one paragraph footnote in his 700 page book. Here is the paragraph in full: here .

Popper makes clear just what he considers unacceptable ‘intolerance.’ He points to groups whose ideologies reject engaging in ‘rational argument’ and who ‘begin by denouncing all argument’ and who even ‘may forbid their followers to listen to rational argument.’ Popper is urging intolerance for groups who refuse to engage in debate, who scorn free speech, and who are afraid to even allow their followers to listen to critical arguments.

Popper wrote this in 1945 when the ashes of the Holocaust were still warm. He was almost certainly referring to actual, murderous Nazis when he wrote those words. Ironically, his description applies to today’s liberal-left who ‘scorn debate’ and ‘are afraid to even allow their followers to listen to critical arguments.’

Popper made a case for drawing a line around certain forms of speech, but he carefully placed the bar extremely high–so high that it has little or no relevance to our present conversations about identity politics.

Nonetheless, the fact is that there were hate speech laws in place during the Weimar Republic before Hitler and the Nazis came to power. These laws were used against prominent Nazis numerous times. They didn’t work, assuming the purpose was to prevent the spread of hatred and intolerance. The same is the case today in Germany and France where the far right is growing in influence in spite of hate speech laws which are regularly implemented. 

Popper’s words on the paradox of tolerance have been misrepresented and used as a hammer by the liberal-left to shut down debate on certain topics–exactly the opposite of their intended meaning.

Other Free speech resources

Ira Glasser: “the right to free speech is not the right to sit in the closet by yourself and mutter.” https://publicpolicylegal.com/2017/05/08/ira-glasser-the-right-to-free-speech-is-not-the-right-to-sit-in-the-closet-by-yourself-and-mutter/

Former ACLU president says censoring hate speech can backfire – just like it did in Nazi Germany https://www.jta.org/2020/09/03/opinion/former-aclu-president-says-censoring-hate-speech-can-backfire-just-like-it-did-in-nazi-germany

Former ACLU Head Ira Glasser explains why there’s no such thing as “hate speech” https://reclaimthenet.org/former-aclu-head-ira-glasser-explains-why-you-cant-ban-hate-speech/

Free Speech–Former ACLU Leader Ira Glasser Tells Us It’s Not What You Think https://www.villagevoice.com/2022/04/07/free-speech-former-aclu-leader-ira-glasser-tells-us-its-not-what-you-think/

Free speech does not equal violence: Part 1 of answers to bad arguments against free speech from Nadine Strossen and Greg Lukianoff https://www.thefire.org/free-speech-does-not-equal-violence-part-1-of-answers-to-bad-arguments-against-free-speech-from-nadine-strossen/

Would censorship have stopped the rise of the Nazis? Part 16 of answers to arguments against free speech from Nadine Strossen and Greg Lukianoff https://www.thefire.org/would-censorship-have-stopped-the-rise-of-the-nazis-part-16-of-answers-to-arguments-against-free-speech-from-nadine-strossen-and-greg-lukianoff/

The Left Needs Free Speech https://www.dissentmagazine.org/article/the-left-needs-free-speech

The Importance of Free Speech https://www.doubledown.news/watch/2020/9/july/the-importance-of-free-speech-problem-with-cancel-culture-ayishat-akanbi

Karl Popper, Free Speech and the Paradox of Tolerance https://www.plebity.org/article/twitter-warriors-of-the-woke-a-letter-from-the-left/

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Free Speech is Non-Negotiable

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This article from the July 2014 edition of the IPA Review is by editor and Policy Director at the IPA, Chris Berg.

The Abbott government’s decision, announced in the first week of August, to abandon its promise to reform section 18C of the Racial Discrimination Act is one of the biggest setbacks for freedom of speech—and the cause of liberal reform—in some years.

Not because the broken promise is highly consequential (although, obviously, it is that, as various section 18C cases have shown) but because it demonstrates just how hard it is to wind the clock back; just how hard it is to reverse the dilution of liberal freedoms.

Throughout the debate over section 18C, the Institute of Public Affairs has maintained that freedom of speech is a fundamental liberty.

The word ‘fundamental’ is not a rhetorical flourish. Speech is the expression of the deepest condition of individuality: that of thought. It is our thoughts—our preferences, our values, our beliefs, our ethical and moral principles—that set us apart from the collective. Being prevented from expressing those thoughts is an attack on our individuality. It suppresses difference in the interests of the group.

Hence the significance of the Coalition’s 18C promise. The last few decades have seen a substantial growth in the number of limitations placed on the freedom of speech. Most iconic of these has been the increasing legislative enactment of the doctrine of ‘hate speech’.

Each Australian jurisdiction (with the exception of the Northern Territory) has its own form of racial vilification laws. The Commonwealth Racial Hatred Act, that introduced section 18C in 1995, was, and remains, the preeminent anti-hate speech law in Australia.

And the most stringent. It is worth recalling that the Andrew Bolt case was originally going to be launched in a Victorian court under Victoria’s anti-discrimination law. However, a decision was made that the plaintiffs would have more success under the Commonwealth’s section 18C.

So repealing section 18C, or amending it in such a way that it was effectively neutered, as George Brandis’ exposure draft legislation would have done, would have been highly symbolic.

It was not for nothing that the promise was the hook on which George Brandis hung what he described as the ‘freedom agenda’. When Tony Abbott gave the original promise to repeal section 18C in its current form at an Institute of Public Affairs event in 2012, his speech was titled ‘the freedom wars’. Abbott’s oratory was stirring. The Coalition would be ‘freedom’s bulwark’ in government.

Abandoning the section 18C promise was not like abandoning any other election promises in the usual way that new governments do. A bulwark is supposed to provide protection.

So there is a heavy degree of irony that the announcement that section 18C would remain on the books came in the middle of a press conference on national security reforms.

Section 18C was, in the words of the prime minister, ‘a complication’ that put ‘national unity at risk’. In this case the government was quite literally trading liberty for security. It was to drop its promise to restore freedom of speech in the hope it would encourage Muslim communities to assist it with anti-terror measures.

As a political tactic, this is a somewhat strange. Australia’s Muslim leaders did not hesitate to condemn some of the new proposals that they believed targeted Muslims unfairly. The government’s ‘trade’ didn’t survive more than a few hours.

But as a position on public policy it is bizarre. Peter Costello was spot on when he asked in the Herald Sun :

Does the Government believe there are community leaders whose commitment to their fellow citizens and the values of a civilised society is so weak they will not co-operate in preventing terror and murder if Section 18C is repealed? If that is the case we really do have a problem.

Let us hope our anti-terrorism strategy does not really hinge on this legislative quid-pro-quo.

But more critically: what does it say about Australia if a political party elected on a platform of ‘freedom’—they used the word liberally—drops that platform as a bargaining chip for national security laws? Such laws are, after all, supposed to protect the liberties which have been discarded.

The case for repealing section 18C is as strong as it ever was. Support for substantially amending it—ranging from simply deleting the words ‘offend’ and ‘insult’ from the act to outright abolition of the section 18C—was found across the political spectrum.

The Age , the Saturday Age , the Australian , the Herald Sun , and the Courier Mail editorialised against section 18C.

Left wing agitators, human rights lawyers, legal academics, public commentators, aboriginal community leaders, and journalists are all found opposing section 18C as it stands and supporting reform. Figures from Keith Windschuttle to David Marr to Antony Loewenstein agree the act must change. (A full list of supporters of change is available at freedomwatch.ipa.org.au .)

Yet here we are. In the end change has to be fought through the parliamentary system. There will be future cases under section 18C. The section is a very real constraint on our most fundamental liberty. Hopefully future governments will take the freedom of speech challenge seriously.

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Free speech doesn’t mean you can say whatever you want, wherever. Here’s how to explain this to kids

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Melbourne has seen days of anti-lockdown and anti-vaccination protests with hundreds of arrests made. Many protesters hold right-wing and extremist views.

Police say people have been arrested for breaching the chief health officer’s directions, as well as drug-related offences and outstanding warrants. But protesters say the crackdown shows their views are being silenced and the legitimate right to protest — a democratic right that links to freedom of speech — is being squelched.

These protests raise important questions about the nature of freedom of speech. Do the actions of the police represent an attempt to limit what people can say, think or believe?

Such concepts can be difficult enough for adults to deal with. But they can be far more confusing for children.

What do kids need to know about free speech?

The First Amendment to the United States Constitution proclaims freedom of speech as a right for all citizens. The Australian constitution does not have such an explicit statement regarding free speech. But Australia is a party to seven core international human rights treaties and the right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights .

In Australia, freedom of speech is taught explicitly as a concept as part of the year 8 civics and citizenship curriculum . Depending on the school and state, this amounts to about four lessons exploring democratic freedoms that allow for participation in Australian society.

But in practical terms, if a child gets sick at the wrong time and needs to miss school they’ll never learn about the most fundamental aspects of their own citizenship at school.

Read more: Freedom of speech: a history from the forbidden fruit to Facebook

Children need to understand that when we talk about freedom of speech we’re actually talking about (at least) two things: freedom of opinion or belief, and freedom of expression.

In Australia, freedom of opinion gives us the right to hold a belief without interference, exception or restriction . We have the right to believe anything we want. We can believe the earth is flat or that alien cabals rule the world.

Freedom of expression is more complicated though. We have the right to say what we want — to give our opinions, advertise, display art and protest — but within limits. Most people are aware of these limits: we aren’t allowed to say fighting words, slander another person’s name, cause a panic, or incite violence, for example.

A useful analogy, understandable by most children, is that we have the right to drive freely on roads provided we observe limits on speed, places we can park, how we negotiate the roads with others and the amount of alcohol we have consumed.

Simplistically, limits on what we say, where we say it and how we act are, therefore, like limits on the road, designed to optimise both our rights and public harmony.

In the case of the protesters, they are claiming and acting as if they have a right to not conform to restrictions put in place for the sake of public health and safety. In other words, they are not acknowledging any limits.

There are consequences to this, just as there are consequences to breaking road rules. Indeed some protesters have already tested positive for COVID , increasing the possibility of infection within the community.

But what about when the free speech is done in a privately owned sphere that is available to the public – such as on a social media platform?

What about free speech in privately owned public spaces?

There have been many instances where a news organisation or person has been banned from social media platforms — the most famous example being that of ex US President Donald Trump .

In this instance, it is not a government intervention that has blocked a person from expressing their opinions but a private entity with its own rules and regulations.

Read more: No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others

Let’s go back to our road example. If someone has a private road leading to a nice bluff overlooking the sea, they might allow anyone access to the bluff provided they follow conditions such as not speeding, sticking to the road and not playing loud music. If someone decided not to abide by those conditions, it is justifiable for the owner to ban them.

Private businesses also allow people into their stores so long as they accept certain conditions governing their behaviour. Most people think this is reasonable.

But what conditions are acceptable to place on public access to private property? What if we did not allow people of a certain racial background into our coffee shop? Or certain genders? Almost no one would think that was reasonable.

The conversation with children, therefore, needs to be about whether limitations are fair and reasonable.

Private companies like Facebook, Twitter and YouTube are allowed to set conditions for those who use their platforms. In fact, in the case of social media, you have to explicitly agree to abide by those terms to be allowed to use it.

Freedom of speech means allowing others the same rights

A crucial characteristics of participatory democracy is that everyone gets a say on issues of public importance, or at least every view gets a champion.

And if you’re free to express an idea, people are free to respond to you, and perhaps dismiss you, as they wish. Your right to be heard is not a right to be taken seriously.

Kids need to be involved

A final important point is that it’s not enough to tell students there are rules — they need to be active participants in constructing those rules.

A classic philosophical thought experiment is the paradox of tolerance, formulated neatly by the philosopher Karl Popper :

in order to maintain a tolerant society, the society must be intolerant of intolerance.

In democratic societies, we need to be tolerant of other beliefs, lifestyles, opinions and expression, but how do we match this with the idea of limits on free speech?

We can use the following questions to start discussions with our students or children:

are there any behaviours we should find intolerable or unacceptable (such as violence, racism and homophobia)?

why are these behaviours intolerable — will they cause harm, or do we simply disagree with them?

how do we know harm occurs?

These conversations about rights and responsibilities are an essential part of a democratic education.

It is possible to have unlimited freedom of expression — just not in a democracy. If someone can say what they want without any regard or consequence, then they’ve merely reached the top of a dictatorship.

Read more: With rights come responsibilities: how coronavirus is a pandemic of hypocrisy

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The “free speech debate” isn’t really about free speech

The debate over “cancel culture” is about something real. But it’s not about free speech.

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For weeks now, the American intellectual elite has seemed to be engaged in a bitter war over free speech. I say “seems” because the conflict is not really about free speech — at least not when you take a closer look.

The most recent flashpoints in this conflict are two high-profile departures from big publications, Bari Weiss from the New York Times and Andrew Sullivan from New York magazine (owned by Vox Media). Both Weiss and Sullivan are frequent critics of the modern left’s position on identity issues; in their departure letters , they both describe their publications as in thrall to a rising tide of left-wing censorship sweeping the country’s media.

“A critical mass of the staff and management at New York magazine and Vox Media no longer want to associate with me,” Sullivan wrote on Friday. “They seem to believe, and this is increasingly the orthodoxy in mainstream media, that any writer not actively committed to critical theory in questions of race, gender, sexual orientation, and gender identity is actively, physically harming co-workers merely by existing in the same virtual space.”

Sullivan and Weiss are hardly the only ones concerned about this problem. Before them, there was the now-infamous letter in Harper’s defending free speech , signed by figures ranging from Salman Rushdie to Margaret Atwood to Noam Chomsky (Weiss was also a signatory, as was Vox’s Matt Yglesias). Before the Harper’s letter, there was Hopkins professor Yascha Mounk’s creation of a new publication, called Persuasion , that stands against what Mounk sees as rising left-wing illiberalism .

These critics are, in general, very sloppy with their terms.

Abstract appeals to “free speech” and “liberal values” obscure the fact that what’s being debated is not anyone’s right to speech, but rather their right to air that speech in specific platforms like the New York Times without fear of social backlash. Yet virtually everyone agrees that certain speakers — neo-Nazis, for example — do not deserve a column in the paper of record.

The real debate here is not about the principle of free speech, but the much grayer question of how we draw its boundaries. What kinds of speech should be morally out of bounds? What sorts of speakers should be excluded from major platforms? When can giving a platform to one kind of person actually make it harder for other people to speak their minds freely? And what kinds of social sanctions, like public shaming or firing, are justified responses to violations of these social norms?

Once we see that these are the issues we’re actually discussing, it becomes clear that “cancel culture” is not the existential threat to free expression it’s made out to be. Questions about the limits of what we should discuss in major publications are important, to be sure — and I do think the anti-cancelers have marshaled some decent arguments for their approach. But debates over speech’s boundaries are the kinds of difficult conversations that every liberal society (maybe even every society) grapples with all the time. Canada criminalizes hate speech , Germany bans Holocaust denial , and the United States permits both — yet no one seriously believes that America is a free society while the other two have somehow collapsed into illiberalism.

The cancel culture conversation is the same debate around free speech’s limits that we’ve been having over offensive speech for decades, playing out in newsrooms and faculty lounges rather than legislatures.

What’s happening now seems novel because we are currently seeing a wave of social justice activism that seeks to redefine how we understand appropriate debate over these topics, sometimes even pushing to consign to the margins views that may have seemed tolerable in the past. These advocates can and have overreached, and should be criticized when they do. But on the whole, their work is aimed not at restricting freedom but at expanding it — making historically marginalized voices feel comfortable enough in the public square to be their authentic selves, to exist honestly and speak their own truths.

This is not a debate over the value of liberalism and free speech. Liberalism requires placing some boundaries on acceptable speech to function; there is a reason out-and-out racists like Richard Spencer weren’t asked to be signatories on the Harper’s letter.

Instead, this is a debate within liberalism over who gets to define the boundaries of speech — and where these boundaries ought to be set if American society is to follow through on its liberal promise.

What we talk about when we talk about “free speech”

In traditional debates about free speech and censorship, the argument is typically centered on some kind of authority or power structure doing the censoring. In this case, there’s no government entity repressing anyone’s speech. But even in classical treatments of free speech, the state isn’t always the villain.

In On Liberty , John Stuart Mill’s canonical defense of liberalism and free expression, he warns of “a social tyranny more formidable than many kinds of political oppression,” a collectively enforced conformity that “leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”

Thomas Chatterton Williams, the Harper’s columnist who organized the letter, tells me that the initial idea for it arose during conversations among a small group of writers and thinkers who shared this sort of Millian concern. While Mill was reacting to the stifling conservatism of Victorian England , his would-be heirs believe it is progressivism — and specifically left-wing views on social justice — that is to blame for “enslaving the soul” of the American intellectual elite.

“We were all stunned and disturbed by the intolerant and censorious mood setting in at cultural and media institutions,” Williams says. “If you are worried about that chilling force sweeping through your institution but feel incapable of sticking your own neck out, this letter is there to show you that many other people are sticking their necks out too.”

The problem with Williams’s mode of argument, and the “free speech” case more broadly, is that it assumes social justice advocates disagree with them in principle — that they hate the idea of open debate rather than having different ideas about what makes our public debate truly open.

The self-identified free speech defenders catalog a few examples of what they see as egregious abuses by left-leaning “cancelers” — for example, data guru David Shor’s indefensible dismissal from Civis Analytics after tweeting a study on why riots in the 1960s were harmful to Democratic electoral fortunes — as proof that their opponents are growing opposed to the very idea of free speech (Civis denies this is why he was fired). Here’s Mounk :

At the very moment when it would be most important for those who oppose an emboldened far-right to speak with confidence and conviction, these same [liberal] values are losing their luster among significant parts of the left. Companies and cultural institutions fire innocent people for imaginary offenses; prominent voices alternate between defending cancel culture and denying its existence; and an astonishing number of academics and journalists proudly proclaim that it is time to abandon values like due process and free speech.

Some of these problems are real; it’s true, for example, that employers really can be too swift to fire people for allegedly offensive behavior. But some of the other examples of cancel culture run amok are unsubstantiated; I’ve seen precious few cases of academics and journalists “proudly” rejecting the value of free speech, and Mounk does not cite any.

Other examples are more complicated than they are made out to be . The Harper’s letter claims that “professors are investigated for quoting works of literature in class,” but the actual incident it seems to be referring to is a white UCLA political science lecturer who repeatedly said the n-word while reading MLK’s “Letter From a Birmingham Jail” aloud. The professor’s response to students’ “distress and anger,” according to a letter by UCLA’s political science department chair, “escalated the situation rather than engaging in the thoughtful and open discourse that we expect from our faculty.”

And others still are non-controversial even among left-wing intellectuals. The Shor case is widely seen as an injustice; a counter-letter to the Harper’s piece circulated widely among journalists states that while “the facts of the situation are unclear ... if Shor was fired simply for posting an academic article, that is indefensible, and anomalous.”

Contrary to the original letter signers’ claims, what’s actually happening here is more subtle than a war between free speech’s defenders and its opponents. It is, as the University of Illinois’s Nicholas Grossman writes , an argument over “drawing the lines of socially acceptable expression and determining appropriate responses to transgressing those norms.” That’s not a conflict over the principles of a free society but the rules that govern its operation in practice.

This is something that would be familiar to Mill. “All that makes existence valuable to any one depends on the enforcement of restraints upon the actions of other people,” he writes in On Liberty . “Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.”

His proposed rule, widely known as “the harm principle,” seems very clear: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

The debate going on now isn’t over the harm principle, exactly. It’s over the definition of the word “harm” — and whether things like Mill’s gendered language and use of the phrase “civilised community” would qualify.

What we debate when we debate “cancel culture”

One of the major reasons this conversation is often so unproductive is that the concepts and targets are, generally speaking, very confused.

“Cancel culture,” the target in so many of the free speech jeremiads, is a notoriously fuzzy concept. It is often taken to refer to all of the following things at once: allegedly widespread self-censorship in elite intellectual institutions, a rise in vicious social media mobbing, and the firing of non-public figures for allegedly racist or bigoted behavior.

To clarify the real nature of the competing positions here, I spoke to Regina Rini, a philosopher at York University whose work focuses on the ethics of modern communication. Her most recent book is titled The Ethics of Microaggressions ; she’s currently working on a new volume tentatively titled Democracy and Social Media Are Incompatible .

“No matter what, there are going to be social norms about what’s okay to talk about in society. Basic things like propriety, privacy, [and] politeness,” she tells me. “There’s nothing new or distinctive about social justice ideology that generates that.”

What’s new in the modern era, according to Rini, is that the mass public has gained an unprecedented ability to influence and reshape those rules — a process that used to be the province of the elite.

This began with the rise of mass literacy but has dramatically accelerated in recent years. The decline in overt racism and moves toward formal inclusion of marginalized groups — people of color, women, LGBTQ people — have brought a slew of new perspectives and experiences into the public square. And the rise of social media has given individual citizens powerful new tools for challenging elite opinion and holding them accountable.

These developments have led to two things that “free speech” defenders — Rini calls them “status quo warriors,” or SQWs for short — find particularly troubling.

The first is substantive. Our new wave of social justice activism contends that arguments from minority groups deserve a special kind of deference; that white people should “listen to Black voices” on racism and grant authority to their lived experiences in conversations about oppression. Further, they argue that elite publications should refuse to air pernicious ideas — for example, that white people have higher IQs than Black people on average for genetic reasons, “junk science” that’s been used to justify racial inequality — that got respectful hearings in the not-so-distant past , on grounds that they contribute to discrimination and make minority employees feel unsafe in the workplace.

The SQWs have reasonable arguments for why this approach could have dangerously stifling consequences. They argue that appeals to identity are indeterminate — what happens when two Black people disagree about racism? — and serve to shut down legitimate debate over topics like the wisdom of police abolition or how to handle rioting during the George Floyd protests. The idea that publishing an op-ed could make someone feel “unsafe,” a sort of “harm” that might qualify under Mill’s principle, strikes them as absurd.

The second argument is not about the rules of debate, exactly, but who gets to decide them. They believe that social media, and Twitter in particular, is starting to exercise a kind of veto over editorial judgment — running roughshod over editors and forcing journalists to be subject to the new activist rules of political discourse. The objection here is not just that activist speech norms are bad, but that those speech norms are being imposed on the intellectual elite by the loudest voices on social media — that a silent majority of conventionally liberal journalists are being silenced by radicals.

You see both of these arguments on display in Weiss’s resignation letter. “Twitter is not on the masthead of The New York Times . But Twitter has become its ultimate editor,” she writes:

As the ethics and mores of that platform have become those of the paper, the paper itself has increasingly become a kind of performance space. Stories are chosen and told in a way to satisfy the narrowest of audiences, rather than to allow a curious public to read about the world and then draw their own conclusions. I was always taught that journalists were charged with writing the first rough draft of history. Now, history itself is one more ephemeral thing molded to fit the needs of a predetermined narrative.

These two axes of conflict — what rules we should follow when talking about identity, and who should get to set those rules — are at the heart of the current controversies. But for some, this isn’t just an abstract debate over “liberalism,” but rather a question of whether their identities, and even their very lives, are taken seriously.

Deflating the “cancel culture” debate

Self-styled free speech advocates often describe their opponents using historical analogies, likening them to Mao’s cultural revolutionaries or the French Revolution’s Jacobins . But in reality, social justice advocates see themselves as vindicating the rights to free expression for marginalized people who have traditionally been limited in their ability to express themselves.

It helps to think of this debate as taking place on a spectrum. Social justice advocates think the bands of acceptable opinion and arguments shouldn’t be narrowed, precisely, but rather pushed to the left — shifted to include formerly excluded voices from oppressed communities and to sideline voices that seek to continue their exclusion. Their critics think the traditional bands of debate are, broadly speaking, correct, and that we’d all be worse off if the social justice advocates succeed in moving speech norms in their direction.

In the view of social justice advocates, the influence of Twitter is helping liberate them by bringing the perspectives of marginalized groups into the public sphere, forcing the (white, straight, cisgender male) establishment to take views seriously that they had otherwise ignored.

Kate Manne and Jason Stanley , philosophers at Cornell and Yale, respectively, put the point nicely in an essay on the free speech debate in the Chronicle of Higher Education .

“When oppressed people speak out — and up, toward those in power — their right to speak may be granted, yet their capacity to know of what they speak doubted as the result of ingrained prejudice. And the way in which they express themselves is often then made the focus of the discussion,” they write. “So it is not just that these people have to raise their voices in order to be audible; it’s also that, when their tone becomes the issue, their speech is essentially being heard as mere noise, disruption, commotion. Their freedom of speech is radically undercut by what is aptly known as ‘tone policing.’”

We saw this at work in the backlash to the Harper’s letter. Much of the controversy surrounded the decision to include a signature from J.K. Rowling , who has emerged as one of the most visible anti-trans figures in our culture. Rowling sees the backlash to her statements about trans people as a threat to her right to free expression; “as a much-banned author, I’m interested in freedom of speech,” as she put it .

But for a lot of trans writers and thinkers, having to constantly debate Rowling’s position— that the movement for trans equality is a threat to the safety and status of cisgender women — is a mechanism for excluding them from public discourse.

It is so hurtful to be told you aren’t “really” a woman or a man, to subject yourself to the public abuse and threats that inevitably follow when debating anti-trans voices, that the psychological cost effectively forces trans thinkers to self-censor. Contrary to the notion that worries about safety are absurd, LGBTQ writers and writers of color commonly do experience threats of violence for participating in public debate. Allowing Rowling to speculate about which women should really “count,” in their view, contributes to crowding them out of the public sphere.

“Fostering an environment in academia or newsrooms that is hostile to people’s given identities is not pro-free speech,” Gillian Branstetter, a founding member of the Transgender Journalists Association, tells me. “When you see Twitter institute a ban on misgendering or deadnaming in its policies ... that actually expands free speech, because it [fosters] free communication.”

This view isn’t universally shared among trans writers. Deirdre McCloskey, a professor at the University of Illinois Chicago and a Harper’s letter signatory, told me she thinks the best solution to Rowling’s harmful views is to straightforwardly debate them on the merits.

“Debate is good, as any true liberal believes,” McCloskey tells me. “If she is telling fairy tales or worse — [Rowling] being the premier example — then call her out.”

Judging by the reaction to the letter among trans advocates, McCloskey’s view seems to be in the minority. It’s easy to see why: It assumes that trans people are debating with Rowling on a level playing field, that it’s possible to have fair and open debates given the current distribution of power.

But there are precious few trans people in positions of power and influence, and treating Rowling’s view as an odious-but-worth-debating view makes it less likely that trans people feel comfortable existing in the public eye. Why should trans people have to treat anti-trans voices as legitimate argumentative partners when no one would, for instance, expect a Jewish writer (like me) to debate a neo-Nazi?

You can already see the response here: that the definition of “anti-trans” or “racist” can be stretched to the point where views that really should be seen as legitimate, like skepticism of the use of the term “Latinx,” get shouted down rather than debated. I think this is a serious argument, one of several anti-cancelers have marshaled for their view.

The “free speech” advocates are correct that some of the other discourse norms surrounding who gets to speak on what topic have real problems; claims about the need to defer to the opinions of minority group members, for example, can have contradictory and even self-undermining consequences . They are also correct that institutions have become way too swift to fire people, a dire and serious consequence, over perceived identity-based offenses — the Shor case being a particularly egregious example.

But by casting this debate in terms of threats to democracy and free speech itself, members of this camp do their own arguments a disservice.

The essentials of a free society are not under assault in any meaningful sense by trans advocates like Branstetter. They are not hegemonic censors with the power or intention to shut down debate over issues of public concern. Instead, they are trying to shift the terms under which a free debate is taking place in a direction that, in their view, is necessary to correct for the silencing effects of centuries of unfreedom.

They may be wrong on certain particulars, or they may not. Hashing that out seems like an important task for American society — which is what it is has been doing, freely and openly, for some time now.

Since Trump won the 2016 election, and especially since the George Floyd protests, things have been in flux. Ideas on both the left and the right that were previously unthinkable are becoming mainstream with striking speed. New information environments have empowered some social groups and weakened others.

Navigating this type of change is difficult. People and institutions are going to make mistakes, even when acting with the best of intentions; journalists and academics will be cruelly mobbed on social media and fired for bad reasons.

Such incidents do not, however, mean that the very idea of free expression is under assault. The sooner we accept that, the sooner we’ll be able to start taking on the actually important questions — about whether improving our society requires real revision to our speech norms, beyond the non-controversial exclusions of neo-Nazis and overt racists from elite intellectual life into new territory by more fully incorporating new ideas about race and gender into public life.

Correction: Thomas Chatterton Williams is a columnist at Harper’s, not an editor as originally identified.

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
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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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17 Freedom of Speech Pros and Cons

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

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

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

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

List of the Pros of Freedom of Speech

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

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

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

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

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

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

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

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

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

List of the Cons of Freedom of Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Free Speech and the Necessity of Discomfort

By Bret Stephens

• Feb. 22, 2018

This is the text of a lecture delivered at the University of Michigan on Tuesday. The speech was sponsored by Wallace House.

I’d like to express my appreciation for Lynette Clemetson and her team at Knight-Wallace for hosting me in Ann Arbor today. It’s a great honor. I think of Knight-Wallace as a citadel of American journalism. And, Lord knows, we need a few citadels, because journalism today is a profession under several sieges.

To name a few:

There is the economic siege, particularly the collapse of traditional revenue streams, which has undermined the ability of scores of news organizations to remain financially healthy and invest in the kind of in-depth investigative, enterprise, local and foreign reporting this country so desperately needs.

There is a cultural siege, as exemplified by the fact that a growing number of Americans seem to think that if something is reported in the so-called mainstream media, it is ipso facto untrue.

There’s a technological siege, which not only has changed the way we work, and distribute our work, but has also created a new ecosystem in which it is increasingly difficult to distinguish fact from opinion, clickbait from substance, and real news from fake.

Then — need I even mention it? — there is the president of the United States. We are all familiar with the ways in which Donald Trump’s demagogic assault on the press has already normalized presidential mendacity, mainstreamed “alternative facts,” and desensitized millions of Americans to both. I’ll get to him in a moment.

But there is also a fifth siege, and this is the one I want to focus on today: This is the siege of the perpetually enraged part of our audience.

This is no small thing when it comes to the health, reputation and future prospects of our profession. Journalism, by its nature, must necessarily be responsive to its audience, attuned to its interests, sensible to its tastes, alert to its evolution. Fail to do this, and you might not survive as a news organization, never mind as an editor, reporter or columnist.

At the same time, journalism can only be as good as its audience. Intelligent coverage requires intelligent readers, viewers and listeners.

We cannot invest in long-form, in-depth journalism for readers interested only in headlines, first paragraphs, or list-icles. We cannot purchase the services of talented wordsmiths and expert editors if people are indifferent to the quality of prose. We cannot maintain expensive foreign bureaus if audiences are uninterested in the world beyond our shores. We cannot expect columnists to be provocative if readers cancel their subscriptions the moment they feel “triggered” by an opinion they dislike.

In sum, we cannot be the keepers of what you might call liberal civilization — I’m using the word liberal in its broad, philosophical sense, not the narrowly American ideological one — if our readers have illiberal instincts, incurious minds, short attention spans and even shorter fuses.

* * * * * *

An example: Last November, The New York Times published a profile of a 29-year-old Ohio man named Tony Hovater. Mr. Hovater is a welder from a suburb of Dayton. He’s happily married, middle class, polite, plays drums, cooks pasta aglio e olio , and loves “Seinfeld.”

He is also a proud and avowed Nazi sympathizer. He started out on the political left, moved over to the Ron Paul right, and ended up marching with the anti-Semitic white nationalists at Charlottesville. He doesn’t believe six million Jews died in the Holocaust, and thinks Hitler was “kind of chill.”

The profile, by Times reporter Richard Fausset, was a brilliant case study in Hannah Arendt’s “banality of evil.” Hovater is not a thug, even if his ideas are thuggish; not a monster, even if he takes inspiration from one; not insane, even if his ideas are crazy. He reminds us that a diabolical ideology gains strength not because devils propagate it, but because ordinary men embrace it. And he warns us, as Bertolt Brecht put it after the war, “The womb is fertile still, from which that crawled.”

Lest anyone doubt what Fausset and his editors at the Times think of Hovater and his ideas, the article was titled “A Voice of Hate in America’s Heartland.” This is not, to say the least, a neutral way of introducing the subject.

Yet that did not seem enough for some Times readers, who erupted with fury at the publication of the article. Nate Silver, the Times’s former polling guru, said the article did “more to normalize neo-Nazism than anything I’ve read in long time.” An editor at The Washington Post accused us of producing “long, glowing profiles of Nazis” when we should have focused on the “victims of their ideologies.” The Times followed up with an explanatory, and somewhat apologetic, note from the national editor.

No doubt, there may have been ways to improve the profile. There always are. But there was something disproportionate, not to say dismaying, about the way that so many readers rained scorn on The Times’s good-faith effort to better understand just what it is that makes someone like Hovater tick.

Just what do these readers think a newspaper is supposed to do?

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. Our authority derives from our willingness to challenge authority, not only the authority of those in power, but also that of commonplace assumptions and conventional wisdom.

In other words, if we aren’t making our readers uncomfortable every day, we aren’t doing our job. There’s an old saying that the role of the journalist is to afflict the comfortable and comfort the afflicted, but the saying is wrong. The role of the journalist is to afflict, period. News is new — new information, new challenges, new ideas — and it is meant to unsettle us.

That’s a good thing. To be unsettled and discomforted is the world’s great motivator. It is a prick to conscience, a prod to thinking, a rebuke to complacency and a spur to action.

Now, when I say we need to be making our readers uncomfortable, I don’t mean we should gratuitously insult them if we can avoid it. But neither should we make an effort to play to their biases, or feed this or that political narrative, or dish the dirt solely on the people we love to hate, or avoid certain topics for fear of stirring readers’ anger, even if it means a few canceled subscriptions. Especially in an age in which subscribers account for an ever-greater share of our revenue, publishers will have to be as bold in standing up to occasional, if usually empty, threats of mass cancellations for this or that article as they were in standing up to the demands of advertisers in a previous era.

What I mean by making readers uncomfortable is to offer the kind of news that takes aim at your own deeply held convictions and shibboleths. There are people on the political right who don’t like hearing that the correlation between firearms and homicides is positive, not inverse — but a positive correlation is what the data show. Some environmentalists may believe that genetically modified “Frankenfoods” are bad for your health, but the overwhelming weight of scientific evidence tells us they are fine to eat.

The truth may set you free, but first it is going to tick you (or at least a lot of other people) off. This is why free speech requires constitutional protection, especially in a democratic society. Free speech may be the most essential vehicle for getting the truth out. But the truth, as anyone minimally versed in history knows, is rarely popular at first.

Barely 50 years ago, it was an unpopular truth that there was absolutely nothing unnatural about the love that went by the horrible name of “miscegenation.” Other unpopular truths one could mention include gay rights, women’s suffrage, and evolution. These truths could only have made their debut in the public square, and eventually gained broad acceptance, under the armed guard, so to speak, of the First Amendment.

But not just the First Amendment. In addition to a legal sanction, free speech has flourished in the United States because we have had a longstanding cultural bias in favor of the gadfly, the muckraker, the contrarian, the social nuisance. For over a century, editors and publishers and producers — at least the more enlightened ones — have gone out of their way to make allowances for opposing points of view.

They do so not because they have no strong convictions of their own, but rather out of a profound understanding that the astute presentation of divergent views makes us more thoughtful, not less; and that we cannot disagree intelligently unless we first understand profoundly. They do so because they believe that social progress depends on occasionally airing outrageous ideas that, on close reflection, aren’t outrageous at all. They hold firm to the conviction that moving readers out of their political or moral comfort zones, even at the risk of causing upset, is good for mind and soul. Ultimately, they do so because we will not be able to preserve the culture and institutions of a liberal republic unless we are prepared to accept, as Judge Learned Hand put it in 1944, that the “spirit of liberty is the spirit which is not too sure that it is right” — and must therefore have the willingness to listen to the other side.

This was what Adolph Ochs knew in 1896, when he promised that under his stewardship The New York Times would “invite intelligent discussion from all shades of opinion.” The Times, like other papers, may not have always lived up to that promise as well as it might have done. But as some of you may have noticed, it most emphatically is now, to the loud consternation of many of our readers.

I do my best to appreciate the concerns of these readers. I understand that many of them — many of us — believe the 2016 election marked a political watershed in which liberties we have long taken for granted are being attacked and possibly jeopardized by a president whose open contempt for a free press has few precedents in American history. I understand the justifiable fear these readers have for a White House in which the truth is merely optional, and in which normal standards of courtesy or decency have lost the purchase they previously had under Democratic and Republican administrations alike.

I also understand that these readers see The New York Times as a citadel, if not the citadel, in standing up to this relentless assault by the president and his minions. I think they are right. The country needs at least one great news organization that understands that the truth is neither relative nor illusory nor a function of the prevailing structure of power — but also that the truth is many-sided; that none of us has a lock on it; and that we can best approach it through the patient accumulation of facts and a vigorous and fair contest of ideas.

That, at any rate, is what I think we are trying to do at The Times, and I can only hope that more people will see its virtue as time goes by. That obviously demands good and consistent communication on our part. But, to return to my theme today, it also requires intelligence on the part of our readers.

How can we get our readers to understand that the purpose of The Times is not to be a tacit partner in the so-called Resistance, which would only validate the administration’s charge that the paper is engaged in veiled partisanship rather than straight-up fact-finding and truth telling?

Some readers, for example, still resent The Times for some of the unflattering coverage of Hillary Clinton throughout the campaign, as if the paper’s patriotic duty was to write fluff pieces about her in order to smooth her way to high office. Again, do these readers comprehend that we are in the business of news, not public relations? And does it not also occur to them that perhaps the real problem was coverage that was not aggressive enough , allowing Mrs. Clinton to dominate the Democratic field in 2016 despite her serious, and only belatedly apparent, shortcomings as a candidate?

As it is, it is not as if there is a great surfeit of pro-Trump news and opinion in the pages of The Times. I think that’s a shortcoming of ours. We are a country in which about 40 percent of voters seem to be solidly behind the president, and it behooves us to understand and even empathize with them, rather than indulge in caricatures. Donald Trump became president because millions of Americans who voted for Barack Obama in 2012 voted Republican four years later. Those who claim this presidency is purely a product of racism need some better explanation to account for that remarkable switch.

The deeper point, however, is that if one really wants to “resist” Trump, especially those of us in the news media, we might start by trying not to imitate him or behave the way he does.

The president is hostile to the First Amendment. Let’s be consistent and expansive champions of the First Amendment. The president belittles and humiliates his political rivals. Let’s listen to and respect our detractors. The president loves to feel insulted and indignant, because his skin is thin and it thrills his base. Let’s hold off on the hair-trigger instinct to take offense. The president accuses first, gathers evidence later. Let’s do the opposite. The president embraces ugly forms of white-identity politics. Let’s eschew identity politics in general in favor of old-fashioned concepts of citizenship and universalism.

I could go on, but you get the point. The answer to a politics of right-wing illiberalism is not a politics of left-wing illiberalism. It is a politics of liberalism, period.

This is politics that believes in the virtues of openness, reason, toleration, dissent, second-guessing, respectful but robust debate, individual conscience and dignity, a sense of decency and also a sense of humor. In a word, Enlightenment. It’s a capacious politics, with plenty of room for the editorials of, say, The New York Times and those of The Wall Street Journal. And it is an uncomfortable politics, because it requires that each side recognize the rights and legitimacy, and perhaps even the value, of the other.

The nomination and election of Trump was, for me, the plainest evidence of the extent to which the liberal spirit has withered on the political right. I’ve written and spoken about this phenomenon many times before, so I won’t get into it here. What worries me is the extent to which it is equally prevalent on the political left.

Case in point: Last month, I wrote a column under the title, “A Modest Immigration Proposal: Ban Jews.”

The word “modest” might have been a tip-off to modestly educated readers that I was not, in fact, proposing to ban Jews at all. My point was to note that Jewish immigrants of a century ago, including my own ancestors, faced the same prejudices that modern-day immigrants from “S-hole” countries face today, and yet went on to great success. In other words, it was a pro-immigration piece, in line with the many other pro-immigration pieces I’ve written for the Times.

Social media went berserk. I was called a “literal Nazi,” guilty of “garden variety bigotry.” Others accused me of giving aid and comfort to neo-Nazis, even if I wasn’t quite a neo-Nazi myself. A great deal of the reaction was abusive and obscene.

By now I’m sufficiently immunized to the way social media works that none of this hurts me personally, at least not too much. And, at its best, platforms such as Twitter are useful for injecting more speech, from a vastly wider and more diverse variety of voices than we ever heard from before, into our national conversation.

What bothers me is that too many people, including those who are supposed to be the gatekeepers of liberal culture, are using these platforms to try to shut down the speech of others, ruin their reputations, and publicly humiliate them.

How many people bother to read before they condemn? Are people genuinely offended, or are they looking for a pretext to be offended — because taking offense is now the shortest route to political empowerment? Am I, as a columnist, no longer allowed to use irony as a rhetorical device because there’s always a risk that bigots and dimwits might take it the wrong way? Can I rely on context to make my point clear, or must I write in fear that any sentence can be ripped out of context and pasted on Twitter to be used against me? Is a plodding, Pravda-like earnestness of tone and substance the only safe way going forward?

Perhaps the most worrisome question is: To what extent are people censoring themselves for fear of arousing the social media frenzies? There’s a reason why Katie Roiphe is writing about the “whisper networks” of women who aren’t 100 percent in line with the #MeToo movement. It should profoundly alarm anyone who cares for #MeToo that such a piece should have needed to be written, in the reliably liberal pages of Harper’s Magazine, no less. The job of #MeToo is to put a firm and hopefully final stop to every form of sexual predation, not to enforce speech codes.

This move toward left-wing illiberalism is not new, and the list of thinkers who have waged war against that illiberalism, from Arthur Schlesinger Jr. in the 1940s to Christopher Hitchens in the 2000s, amounts to a roll call of liberal honor. I think we are awaiting our new Hitchens today, in case any of you want to apply for the job. All you need is a first-class brain and a cast-iron stomach.

So where does this leave us?

I gave this talk the title: “Free Speech and the Necessity of Discomfort.” Yesterday morning, when I retweeted Knight-Wallace’s tweet advertising this speech, someone wrote, “Man, I hope he gets shouted down at some point.” Maybe he was being ironic. At any rate, I’m happy to note that none of you has shouted me down — so far!

I trust that’s because all of you recognize that, even if I may have said some things that made you uncomfortable and with which you profoundly disagree, there is a vast difference between intellectual challenge and verbal thuggishness, between a robust and productive exchange of ideas and mere bombast, between light and heat.

It’s fair to say that Americans of different ideological stripes feel that many things have gone profoundly amiss in our social and political life in recent years. We all have our diagnoses as to what those things are. But one of them, surely, is that we are rapidly losing the ability to talk to one another.

The president has led the way in modeling this uncivil style of discourse. But he has plenty of imitators on the progressive left, who are equally eager to bully or shame their opponents into shutting up because they deem their ideas morally backward or insufficiently “woke.” As each side gathers round in their respective echo chambers and social media silos, the purpose of free speech has become increasingly more obscure.

Its purpose isn’t, or isn’t merely, to allow us to hear our own voices, or the voices of those with whom we already agree. It is also to hear what other people, with other views, often anathema to ours, have to say.

To hear such speech may make us uncomfortable. As well it should. Discomfort is not injury. An intellectual provocation is not a physical assault. It’s a stimulus. Over time, it can improve our own arguments, and sometimes even change our minds.

In either case, it’s hard to see how we can’t benefit from it, if we choose to do so. Make that choice. Democracy is enriched if you do. So are you.

I invite you to follow me on Facebook .

Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion) , and sign up for the Opinion Today newsletter .

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Tech & rights, what is free speech absolutism who is a free speech absolutist examples, pros and cons, elon musk called himself a “free speech absolutist” when he announced he would buy twitter. but what does free speech absolutism actually mean what might sound good in theory may not be good in practice., by eleanor brooks & jonathan day.

Elon Musk, a polarizing entrepreneur and self-avowed “free speech absolutist”, intends to buy Twitter . He has said that the social media platform – a private entity – does not protect free speech adequately and indicated he will remove certain restrictions on what users are allowed to say.

His bid sent shockwaves across social media and provoked a deluge of articles and opinion pieces on the future of Twitter. But there has been surprisingly little said about an idea at the very core of his actions: free speech absolutism. What is it, and can Musk fairly call himself a free speech absolutist?

What is free speech absolutism?

Free speech absolutism has its roots in philosophical theories dating back to the 17th century, but it was first discussed as a defined principle by the 20th century free speech advocate and philosopher Alexander Meiklejohn. He believed that in order for a nation to be considered autonomous, the people should be able to express themselves freely about matters related to self-governance without any limitations being placed on speech by governments or the state.

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His writing focused on the United States, and much of his thoughts were put forth in the context of American constitutional law. In fact, the very idea of “absolutism” – that there are certain absolute principles in political, philosophical, ethical, or religious matters – is an American idea. In theory, a free speech absolutist would be extremely hesitant (or refuse) to draw a line between free speech and hate speech in most contexts, and in all contexts where the speech could possibly be considered political speech. Without exception, all Western European countries define themselves in opposition to the American absolutist position when it comes to hate speech.

Free speech absolutists believe that in order for a nation to be considered autonomous, the people should be able to express themselves freely about matters related to self-governance without any limitations being placed on speech by governments or the state.

This commitment to self-rule, in Meiklejohn’s view, justified and formed the basis of the constitutional right to unfettered free speech guaranteed by the United States Constitution, and warranted its absolute nature, meaning it should not be weakened or watered down to bend to other social values.

However, his understanding didn’t extend to private speech about issues not of public concern. So, while your right to publish your views about a social issue is safeguarded, even if others may take offense, Meiklejohn believed that you can’t rely on free speech protection to shout casual abuse at someone on the street.

In essence, free speech absolutism is the belief that we all have an inalienable right to political free speech, and the state cannot introduce any laws which curb the freedom of expression or its associated rights, including freedom of religion, speech, press and association.

Who counts as a free speech absolutist?

The majority of people consider free speech to be important . Politically, it allows us to contribute meaningfully to decisions about how we are governed and makes it possible for us to be informed about what is happening in society. On a personal level, the freedom to express ourselves however we choose, from how we dress to the books we read, is intrinsic to our personhood and happiness.

But that doesn’t necessarily make us free speech absolutists.

Despite enjoying these liberties, most of us understand that all speech should be protected, if it is politically motivated . But if, say, someone made a public speech in support of a certain politician or political idea and ended by calling on people to commit violence against whoever opposed the politician, that would not fall within the freedom of expression, but rather hate speech, which is not protected.

Help us reach more people with human rights explainers. Donate! Donate Free speech absolutists believe that any limitation on political speech is veering into dangerous territory. They believe that restricting free speech in any way, including curbing insulting or factually incorrect speech, means assigning gatekeepers who decide what can and cannot be expressed in public. This process is littered with hazards – it’s ripe for abuse, there’s no clear consensus on who would be qualified to determine this, never mind the fact that the very last thing a free society should want would be for platforms like Twitter and Facebook to become arbiters of free speech.

The core of a free speech absolutist’s belief is the idea that only through a free exchange of views can we reach the “truth”. This is also known as the “marketplace of ideas”, an idea that has origins in John Milton’s work from the 17th century, and more concretely in the writings of philosopher John Stuart Mill in the 19th century. The marketplace of ideas holds that truth emerges from the competition of ideas in free public discourse. And this is likely the idea Musk has in mind, as he’s even said that Twitter should be a “digital town square where matters vital to the future of humanity are debated”.

However, even within the clique of free speech absolutists, there is disagreement about how far the theory should go. For example, not every absolutist agrees with Meiklejohn’s view that only political speech falls within the bounds of free speech. It’s quite possible this includes Musk. After all, he’s used his own Twitter account to baselessly accuse a British diver of being a pedophile and said that, should the sale go through, he will restore accounts of people – including Donald Trump – who spread COVID-19 disinformation and fomented violence after the 2020 US election .

Free speech absolutists around the world: then and now

Justices Hugo Black and William Douglas, two esteemed American jurists who served on the Supreme Court, were free speech absolutists who held a literal interpretation of the First Amendment. In their view, speech of all kinds should be free, with some exceptions. For example, certain expressive conduct (behavior intended to convey a message) was not protected, such as falsely shouting “fire” in a cinema, and should be regarded (and controlled) as action rather than words. Douglas, who feared that any limits on free speech risked a gradual shift to state mandated conformity, believed that all political speech was protected.

Today, however, there are many – quite possibly including Musk himself – who think free speech absolutism extends far beyond political speech. This appears to have a lot to do with cultural shifts, particularly in the United States. Free speech absolutism has gained currency in recent years as a reaction to so-called cancel culture: the decisions by private entities, such as universities or publishing houses, to disinvite certain speakers or decline to publish books from certain individuals with a history of incendiary public comments.

Of course, many of these are not free speech issues – private entities are under no obligation to give an equal platform to everyone in the US. But very many people have said such instances are violations of free speech. The removal of Donald Trump’s Twitter account is a good example. Assuming Twitter followed rules and procedures, it had every right to ban Trump’s account. And yet seemingly every reaction from the political right was that this was a violation of free speech.

Pros and cons of free speech absolutism

An attractive quality of free speech absolutism is that it allows us to side-step some very messy questions which require answers that are almost impossible to agree on. If not all speech is free, who gets to make the decision about what is protected and what isn’t, and how do we stop those gatekeepers from abusing their power?

It is hard to answer such questions without making value judgments about what is “good” or “bad” and “right” or “wrong”, which could be a slippery slope to censorship. However, free speech absolutism does not guarantee everyone that their voice will be heard. Issues like unequal access to platforms and the revenue-first business models of social media platforms mean that some people will always face difficulties making themselves heard, and some voices will always be amplified more than others.

Future of free speech absolutism: where will its path lead?

Elon Musk has taken up the mantle of the 21st century free speech absolutist. Similar to his forefathers, the Tesla CEO has described free speech as being “the bedrock of a functioning democracy” – and that much he has right . But it is by no means clear that he will use Twitter, which he plans to privatize, for pure intentions.

Despite his lofty declarations, Musk has a track record of silencing his critics. To give one example, a former employee of Tesla was fired for raising safety concerns about a Tesla autopilot function on his YouTube channel. This strikes at the core of Musk’s incongruity on the issue. From a legal standpoint, that action had nothing to do with free speech law. And yet the former employee’s words are exactly the sort of “free speech” Musk claims to be crusading for.

Even if we were to pursue a quest of free speech absolutism, there will still be gatekeepers controlling the content we consume. Be it the billionaires buying media outlets and social media platforms, or magazine editors who decide what stories get published, most of what we read has been decided by someone else. A more realist approach allows these conversations to happen in the open.

The Digital Services Act soon to be approved by the EU Parliament is one such example. Walking the line between regulation and free speech without veering into censorship is a delicate task which requires many voices, which is why Liberties has campaigned heavily to ensure the final text preserves free speech and platforms, such as Twitter follows rules and create transparent and effective complaint and redress mechanism in case of unfair content removal.

And whatever his plans for Twitter may be, in Europe even Musk is bound by DSA .

More Stories

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Civil Society Statement: Commissioner Breton Needs to Clarify Comments About the DSA Allowing for Platform Blocking

Access to Information: Definition, Importance, Expansion

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Challenges of Ethically Regulating Free Speech on College Campuses

By shoellis

By: Olivia Welsh, Ethics and Policy Intern

Each day, headlines highlight the ongoing questions we have about the role of universities in public discourse. These conversations center on questions surrounding political neutrality, what is considered “appropriate” speech from students and faculty, and how to protect university community members from harm. These are not new questions, but the escalation of the Israel-Palestine conflict, from everyday campus protests to Ivy League president resignations, has brought the issue of free speech on college campuses to a boiling point.

A university or higher-education institution is inherently a setting where intellectual and ideological disagreement will occur – and should even be encouraged. The challenge is where and how do we draw the line. What type of speech is so harmful to members of the community that it must be restricted? Who gets to decide the line between right and wrong? What is a university’s responsibility to speak out about the social and political issues of the day?

Being uncomfortable is a necessary part of growth. Being unsafe is not. This is the balance that colleges and universities are trying to strike every day. Can there ever be an institution that gets it exactly right in the eyes of all?

The background of college campus free speech

In the 1960s, free speech on college campuses was at the forefront of higher education discussions. The University of Chicago made its first attempt at taking an official stance by publishing the Kalven Report. This 1967 statement, still in use today, argues that institutions should remain socially and politically neutral while fostering lively debate among their members. The authors of the Kalven Report believed that a university should not suppress any viewpoints or change its corporate activities to foster social or political values.

“The university is the home and sponsor of critics; it is not itself the critic. […] To perform its mission in society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures” [5].

In short, the report states that a university should be a place to discuss all possible perspectives without censorship. The members of a university community can come to their own conclusions and act independently of the institution itself. The Kalven Report pushes back at anyone who might consider such a choice to not weigh in on the topics of the day as cowardly or uncaring:

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” [5]

In 2014, the University of Chicago decided to make another statement amidst an onslaught of various free speech lawsuits against universities nationwide. The resulting Chicago Principles delineate a clear and longstanding commitment to free speech and allow a wide diversity of ideas to be discussed in the University setting. The Chicago Principles reiterate the sentiment of the Kalven Report, calling debate and deliberation essential to higher education, even if the ideas discussed are viewed as “offensive, unwise, immoral, or wrong-headed” [8]. It guarantees “the broadest possible latitude to speak, write, listen, challenge, and learn,” provided that such behavior does not interfere with the core functioning of the university [8]. Furthermore, the Chicago Principles demand that all community members not obstruct or otherwise interfere with others’ freedom of speech. The Chicago Principles conclude by arguing that “without a vibrant commitment to free and open inquiry, a university ceases to be a university” [8].

These are the positions that the University of North Carolina System (“UNC System”) adopted in 2017, as endorsed by the University of North Carolina at Chapel Hill’s (“UNC-Chapel Hill”) Faculty Council and Board of Trustees [10] [3]. The UNC System schools are among over 100 other colleges and universities nationwide that have adopted the Chicago Principles, including several of our peer institutions [4]. In 2022, the UNC-Chapel Hill Board of Trustees took a further step in protecting free speech by adopting the Kalven Report [2].

“The mission of The University of North Carolina at Chapel Hill is advanced by our commitment to the aspirational principles that guide our public conversation no matter how unsettling […] At Carolina, we have long known that light and liberty are the essential tools that allow problems to be seen, ideas to be tested, and solutions to be found,” the Faculty Council states [10].

Of course, both the UNC System and UNC-Chapel Hill have policies regulating free speech, which forbid defamation, unlawful harassment, true threats, unjust invasions of privacy, and more (see the UNC System Policy and the UNC-Chapel Hill Policy ). However, these policies leave several unanswered questions. For example, it is not always clear what speech falls under the category of a “true threat,” especially because that might mean different things to different people.

When does protecting free speech interfere with a university’s teaching mission and functioning? Do institutions have a different obligation to protect historically marginalized groups compared to historically well-represented groups? What is a university’s responsibility in addressing social and political issues? There are no “right” answers, but some views on these questions are explored below.

When does protecting free speech inhibit a university’s functioning?

The Kalven Report, the Chicago Principles, and the UNC policies all indicate that it is appropriate to restrict free speech when it interferes with the necessary functioning of the university, with safety concerns being of utmost importance. Beyond cases like riots that would physically disallow classes from taking place and endanger members of the university, disruptions like exclusionary speech could also be viewed as interfering with a university’s core functioning by hindering equal access to education. If it is a university’s mission to educate all its students, but a particular group feels unreasonably ostracized due to the free speech of others and feels unable to attend or participate in class, then one could argue that speech is interfering with the necessary functioning of the university.

Say that, while not violating any laws, an anti-Black Lives Matter (“BLM”) speaker comes to campus and delivers a scathing condemnation of the BLM movement. However, the speaker’s remarks and student participation in the event make Black students feel unwelcome on campus, and therefore, these students find it harder to benefit from their education. Does this qualify as speech that interferes with the university’s functioning? And if so, should it not be welcomed on campus?

On the flip side, does inhibiting a challenging viewpoint negatively impact the educational environment? Students should have the opportunity to grapple with difficult ideas and the controversies of the day – that is part of what is so valuable about a liberal arts education. Colleges are not full of fragile students who cannot stand to hear free speech, and they should not be portrayed as such. The key is creating an environment where the needs of all students remain supported even during protests, controversial speakers, and difficult discussions. However, it is not easy to prescribe a single policy for handling free speech since circumstances vary dramatically from institution to institution [1].

Is there a different obligation to protect historically marginalized groups at a university?

Continuing with this hypothetical of an anti-BLM speaker on campus, how might appropriate free-speech regulation differ based on context? According to UNC System data, just over 8% of UNC-Chapel Hill’s undergraduate student body identifies as Black/African American [11]. In the context of having such a significant minority, is it justified to more strictly regulate free speech that makes Black students feel unwelcome and further marginalized at the university?

One might think that free speech should be fully protected regardless because any university member in opposition has an equal right to free speech in response. However, just because someone has the right to free speech does not mean they feel reasonably empowered to use it. This highlights the important distinction between equality, which treats everyone the same, and equity, which recognizes that creating a level playing field often means allocating more or less resources to particular individuals or groups based on their specific circumstances. Giving all campus community members the same right to free speech is equal, but equitable free speech would amplify and protect minority groups.

The teaching mission of a university relies on an inclusive climate. Institutional attention is necessary to ensure that all students in diverse classrooms are comfortable being involved in the learning experience. Because it is important to include ALL students in an environment of free inquiry, there is an argument that free speech that specifically marginalizes an already minority group must be more strictly regulated than controversial speech that makes a majority group uncomfortable [1].

This is where context is important because, unlike UNC-Chapel Hill, Howard University (“Howard”) has a very strong majority of Black students. At Howard, Black students would likely not feel as threatened by an anti-BLM speaker; therefore, students could more comfortably engage in rigorous debate and grapple with differing viewpoints, which is essential in higher education.

What is a university’s responsibility to govern speech on campus about social and political issues?

This past November, a speaker unaffiliated with UNC-Chapel Hill made remarks on campus that sympathized with the violence perpetrated by Hamas against Israeli citizens on October 7th, 2023 [7]. Such tolerance for violence (which killed over a thousand Israeli citizens) is clearly alarming and certainly falls under the category of speech seen as “offensive, unwise, immoral, or wrong-headed.” But remember that, in the spirit of free inquiry and true academia, the Chicago Principles protect such speech. The remarks did not include a threat or any other banned speech.

Then-Chancellor Kevin Guskiewicz strongly condemned the remarks, as did the Dean of the College of Arts and Sciences and many others at UNC-Chapel Hill. Months later, the Faculty Council, the same one that originally endorsed the Chicago Principles, considered a resolution to “strongly condemn the antisemitic statements at the event.” The group decided to indefinitely postpone the resolution, avoiding taking a side on its merits. While some did feel strongly that the remarks were antisemitic, others viewed this as a mislabeling since the comments contained no mention of the Jewish religion or people and only directly criticized the actions of the Israeli state .

There is another tricky consideration – if the Faculty Council passes a resolution condemning antisemitism, must it follow this up with a condemnation of Islamophobia to ensure neutrality and inclusivity? Does this set a precedent by which the Faculty Council must condemn any speech it regards as harmful, even if the speech does not violate the UNC System or UNC-Chapel Hill free speech policies? Who decides what should and should not be condemned, and where is the line drawn regarding what warrants a comment?

Certainly, this is not to say that members of an institution cannot or should not speak up against violence or perceived hate. Still, at the institutional level, there are significant policy ramifications to consider in protecting free speech and thorough education [7]. Starting to weigh in on social and political issues is a slippery slope for universities because it creates an expectation of doing so for all issues. The authors of the Kalven Report anticipated this and promoted institutional neutrality, trying to make a university a simple facility where lively debates on the day’s topics can occur.

This is a perfectly reasonable argument, but there is another drastically different viewpoint. Is institutional neutrality just a convenient excuse for universities to stay silent and take the “easy way out?” [12]. At Indiana University (“IU”), administrators recently caused an uproar when they canceled a scheduled art exhibition by a Palestinian-American artist. IU administration cited security concerns as the reason for the cancellation. However, the artist, members of the IU community, and outside organizations speculate that the real reason is a reaction to comments by an Indiana congressman who threatened to withhold federal funding from IU if it failed to address perceived antisemitism concerns adequately [6].

Walking a political tightrope does not seem to be a legitimate reason for censorship at a public university. Institutional neutrality that allows for all viewpoints to be expressed is very different than a restrictive “institutional neutrality” that prohibits any viewpoints from being expressed. Universities risk establishing an orthodox view on campus by making statements or taking actions regulating free speech, thereby ostracizing alternative thinkers [9]. While a university might not be responsible for acting on social and political issues (the substance for a whole different debate), it does have a responsibility to facilitate an environment that considers social and political issues and equips its students to handle these difficult or delicate issues once they graduate.

Between a rock and a hard place

There are still so many unanswered questions regarding free speech on campus, and it is doubtful that a satisfactory solution will ever be reached. Any policy on free speech must consider legal constraints, institutional missions, and the feelings of students, faculty, and staff. With so many stakeholders to satisfy, it makes sense that the issue of free speech on campus keeps coming up.

During controversial times, it is helpful to remember that heated moments subside, and history reflects that. “Right answers” are hard to come by, but at the end of the day, a university that can keep its campus community safe and facilitate productive conversations is doing its job pretty well.

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Opinions of Wednesday, 24 July 2013

Columnist: Sarfo, Chris

Why free speech is a non-negotiable ...

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....ingredient for our growing democracy Nurturing institutions of society is an important aspect of growing a democracy, and encouraging free speech is an important step on that road. Participatory democracy as we aspire to have in our country cannot happen if we are not allowed to exercise freedom of speech in matters relating to all branches of government. Twenty years since we as a nation adopted the 1992 4th Republican constitution as the supreme law of the land, of which freedom of speech is enshrined in it, we are in danger of throwing it away by acquiescing to a back-door gagging process. It should be a matter of concern if citizens worry about expressing their opinions on matters of national importance simply because their views might offend the sensibilities of judges and thus risk possible jail time. Off course free speech, indispensable as it is in a participatory democracy isn’t an absolute right. It comes with responsibilities, and that is a universal rule so one has to be careful when bellowing from the rooftop their right to speak freely. If an individual went on national radio and alleged without any evidence that a person from one tribe was murdered by persons from a different tribe for no reason other than ethnicity and proceeds to call on the tribe of the victim to rise up in revenge, that will be irresponsible and that individual will have to be brought to account. When Stephen Atubiga threatened mayhem should the Supreme Court rule against the respondents, it really ought to have been a matter for the police to investigate with the option of prosecuting him for inciting violence and threatening public order. The intervention of the justices of the Supreme Court was therefore unnecessary. After all, the Supreme Court, as the highest court of the land essentially acts as the referee in the ever-present tussle between the executive and the ordinary citizen. In other words, the judiciary acts as a check on executive excesses, which if unchecked invariably translates into a shrinking or reduction of the individual’s liberty and ability to exercise his/her rights. If the Supreme Court, as the ultimate guarantor of our civil rights, which are enshrined in the constitution, of which freedom of speech is included, elects themselves as beyond criticism by individuals, are we not as a society risking our fundamental liberties? Participatory democracy is noisy, and rightly so, because different views should be allowed to be expressed to inform the discourse rather than only the views of a select few. No one wants to be hauled before his eminences and risk jail time without any course for redress. Where does one go to seek redress when the Supreme Court sentences one to jail for speaking out of turn? And speaking out-of-turn is anything his eminences decide is out of turn while also sitting in judgement of it, thus leaving the accused to seek to change the minds of the very people he has allegedly offended. Can the justices’ objectivity be guaranteed? Our Supreme Court judges are obviously a product of our cultural heritage where authority and deference are synonymous with positions of leadership, almost without questioning. Challenging a leader is frowned upon. It is viewed as disrespectful and a show of contempt. One only has to watch the proceedings against Ken Kuranchie to understand my point. Not only was Ken constantly interrupted by the justices while demanding unqualified apology for his publication, they also did not even see fit to explain their reasons for hauling him before them in spite of his efforts at seeking some clarity. “You want to be a hero huh” (repeated several times) crystallises this view that Ken was only expected to render a grovelling apology, not attempt to exercise his right to explain his point. By their actions the justices seemed intent on asserting that he was being petulant and had no right to think he could challenge their wisdom, however unclear their point was. And that is a worrying point. This undue emphasis on total respect for the judges, placing them in the pantheon of deity; that their words and actions are sacrosanct and beyond criticism presents an existential risk to our democracy. Judges are not beyond fallibility. They are not endowed with unfettered divine wisdom. Their performance cannot be beyond the layman’s remit to critique. Our society, indeed our underdevelopment as a society is arguably down in large part to our past leaders arrogating unto themselves divine wisdom and infallibility as to place their actions and decisions beyond the ability of others to criticise them, however mediocre and shambolic they truly were. Important a role as the judiciary plays in a democracy, what it definitely is NOT is being above the law. The court, as an institution is still staffed by human beings, who are also subject to the same kinds of emotions that lesser beings experience. While training and years of experience on the bench enables judges to develop better perspectives on issues, they are nonetheless human beings who may not always be able to deliver the unvarnished truth without some influence of personal biases. Judges’ decisions are regularly overturned by higher courts on various grounds. However it is dressed up in explanation, the fact of reversing a judicial ruling is ipso facto recognition of fallibility on the part of the person (judge) or institution (judiciary) for which the system should be able to deal with without unduly trampling on citizens’ rights. There is also a contradiction at the heart of our democracy, which this case has helped to unravel. We are able to criticise and even mock our political leaders, which is a good thing. The same apparently cannot be said of our judges and/or their actions in the course of doing their job. Every thriving democracy needs a healthy dose of disdain for the politicians who run the show. The growth of political satire in the West has gone hand in hand with the deepening of participatory democracy because politicians have been made to realise that however seriously they may take themselves, they remain at the service of the electorate and so they could not take themselves too seriously or risk the ire of their electors. Judges are however not elected in our democracy. They are appointed, and at the Supreme Court level, they are appointed by the president. Does it follow from this that because they are not elected they are exempt from the normal rules of critique? The answer is a resounding NO. They are obliged to ignore the sound and fury raging around them to dispense justice as they see fair without being too sensitive to criticisms of their rulings. I have heard that the laws of contempt in Ghana are so broad and wide in spectrum that judges effectively have free reign on what they may deem as contempt of court, and with that administer what they may regard as appropriate justice. The scary thing is that such dispensation of justice is akin to God’s justice as any request for redress is virtually non-existent, particularly if dispensed by Supreme Court justices. At least in lesser courts, a long jail term may be appealable to a higher court. If the judiciary is to be powerful enough to be a counter-weight to executive power grab, then it has to be appropriately empowered by the constitution. By the same principle of investing sufficient power into any institution of state to ensure its effectiveness, there is also the need to ensure that the same institution does not then become too powerful as to become a law unto itself. Judges allowing themselves to be caught up in the drama around the process of delivering justice risks making them an active player rather than the conduit for justice, which essentially is their raison d’être. In a paradoxical sense, that even undermines the aura and deference traditionally accustomed to the bench as they risk being seen as a political player. The judges, particularly the Supreme Court justices should not be seen and should not regard themselves as above criticism or even reproach. After all, enshrined in the constitution is the possibility of impeaching a Supreme Court justice. However remote a scenario that is, its availability is recognition of the fallibility of Supreme Court judges and that is an affirmation of their essential humanity subject to all the frailties of the human species. We sell ourselves short and undermine our own democracy if we acquiesce in a process that places certain category of people, however high their class, beyond criticism. And criticising is essentially an exercise in free speech, the one indispensable ingredient our growing democracy needs above all. I happen to be in favour of a situation where we err on the side of free speech rather than endure the risk of judiciary-inspired cowardice. With time institutions grow stronger and with that effective ways of dealing with inevitable excesses. The opposite, i.e. curtailing free speech in deference to the judiciary or any branch of government does not hold the prospect of any brighter future for the country on its path to development. The absence of free speech stunts critical analysis and with that come poor choices and a people easily fed on lies and half-truths by politicians and other officials. To have a situation where judges elevate a legitimate issue of respect for the court and administration of justice to the level whereby they simply display the symptoms of judge-itis,(the situation where a judge goes pompous), then the greater good of justice for the ordinary person is seriously imperilled. Once citizens are too cowered into exercising their right to free speech, then the skidding into dictatorship would have began, and stopping progress become more difficult with each metaphoric inch covered.

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nonnegotiable

Definition of nonnegotiable

Examples of nonnegotiable in a sentence.

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'nonnegotiable.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

1859, in the meaning defined above

Dictionary Entries Near nonnegotiable

nonnegligent

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“Nonnegotiable.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/nonnegotiable. Accessed 2 Apr. 2024.

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Legal definition of nonnegotiable, more from merriam-webster on nonnegotiable.

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Freedom of speech, expression non negotiable: Tewari

Freedom of speech and expression are non negotiable entities and there is a need to find a "golden mean" between this freedom and reasonable restrictions, information and broadcasting minister manish tewari today said..

Freedom of speech and expression are non negotiable entities and there is a need to find a "golden mean" between this freedom and reasonable restrictions, Information and Broadcasting Minister Manish Tewari said. "I think at that at the end of the day there will be anybody who will say that the freedom of speech or expression is negotiable by any stretch of imagination. That is a complete non sequitur," Tewari said. "The debate really is not about reasonable restrictions ... The debate is about finding the golden mean. To what extent the freedom of speech and expression extend and where do reasonable restrictions take over. And who ultimately will police that space of reasonable restrictions." He was speaking at a function organised by the Press Council of India (PCI) to mark National Press Day. "Over the last one decade, technological innovation has been so rapid that I don't that either regulation or human ingenuity has been able to keep pace with it. There is a whole new paradigm in the social media space which has emerged whereby everybody has the ability to be a broadcaster at time with responsibility, at times without restraint," Tewari said. He, however, added that media itself was also conscious of the need to self correct and stressed that self regulation was the way forward. "The media itself is cognisant of the need to self correct, if at all there are aberrations which do creep in the discourse. I do firmly believe that self regulation is really the way forward," he said. "That is why over the past eight years the policy of the UPA government has been an essay at persuasion rather than an attempt at regulation. This course, we intend to stay the course," he added. Tewari said that the government could assist the self regulation mechanisms for the media but had no intention of playing the big brother. In his speech, PCI chief Justice Markanday Katju put forward a case of increasing the ambit of the Press Council by including the electronic media under it. He called for regulation and not control of media. "I have been misunderstood by some people who think that I wish to gag and muzzle the media. The truth is that I have always supported media freedom wherever there was an attack on it," he said. He also said while Indian media had done a commendable job there were also several serious complaints against it. "Paid news, Radia tapes etc have brought a bad name to the media. Some media persons have even been accused of extortion and blackmail. The scene in the media has grown murkier in recent times," he said. Katju said that corporatisation and commercialisation of the media was partially responsible for this and said that no freedom could be absolute and had to be coupled with responsibility. "There cannot be freedom to defame, incite religious riots, extort and blackmail, hold media trials etc. Hence a balance has to be struck between freedom and responsibility," Katju said and added that he was "in favour of regulation of the media, not control." "However regulation should not be by the government by by an independent statutory authority like the Press Council which has 28 members of which 20 are representatives of the Press," he said. Katju also said that Press Council should have powers to impose fines or cancel licences of a delinquent journal, which should be exercised in rarest cases. In the speech which he made after Katju had spoken Tewari batted for self regulation by the media and said that "the challenges which Justice Markanday Katju alluded to in his opening address need a deep a debate and introspection". The I&B minister also honoured the winners of the Press Council of India instituted - National Awards to honour journalists excelling in print journalism in various fields. This awardees included Damayanti Datta, Priyanka Dubey, R Samban, Rajesh Parshuram Joshte, Razia Begum, Biplab Banerjee, Lattur Rathinam Shankar, Partha Paul, Kamal Kishore, Sanjoy Ghosh, Zishaan Akbar Latif and Hasan Kamaal. Earlier speaking on the occasion the German Ambassador Michael Steiner said that India is the world's largest media market - and growing. "India is a tower of media strength in a region of the world where freedom of press is all but guaranteed. Freedom of expression and freedom of information are part of the DNA of Indian society. More than 600 TV stations, thousands of newspapers - India has all the means to exert this fundamental right, not only on paper, but in practice," Steiner said.

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