thesis statement about freedom of expression

52 Freedom Of Expression Essay Topic Ideas & Examples

🏆 best freedom of expression topic ideas & essay examples, ⭐ good essay topics on freedom of expression, 🎓 most interesting freedom of expression topics to write about.

• Freedom of Expression Essay For one to be in a position to gauge the eventuality of a gain or a loss, then there should be absolute freedom of expression on all matters irrespective of the nature of the sentiments […]
• Protecting Freedom of Expression on the Campus An annotated version of “Protecting Freedom of Expression on the Campus” by Derek Bok in The Boston Globe.*and these stars are where I have a question or opinion on a statement* For several years, universities […] We will write a custom essay specifically for you by our professional experts 808 writers online Learn More
• Freedom of Expression in the Classroom The NEA Code of Ethics establishes a link between this Freedom and a teacher’s responsibilities by requiring instructors to encourage “independent activity in the pursuit of learning,” provide “access to diverse points of view,” and […]
• Freedom of Expression on the Internet Randall describes the challenges regarding the freedom of speech raised by the Internet, such as anonymity and poor adaptation of mass communication to the cyber environment.
• The Freedom of Expression and the Freedom of Press It is evident that the evolution of standards that the court has adopted to evaluate the freedom of expression leaves a lot to be desired. The court has attempted to define the role of the […]
• Protesting as a Way of Exercising Freedoms of Speech and Expression However, this department will be very careful in monitoring the behavior of the protestors and engaging in dialogue to solve issues that may lead to conflicts.
• Freedom of Speech and Expression in Music Musicians are responsible and accountable for fans and their actions because in the modern world music and lyrics become a tool of propaganda that has a great impact on the circulation of ideas and social […]
• Expression on the Internet: Vidding, Copyright and Freedom It can be defined as the practice of creating new videos by combining the elements of already-existing clips. This is one of the reasons why this practice may fall under the category of fair use.
• Kuwait’s Opposition and the Freedom of Expression The political system in the country has played a major role in limiting the freedom of media because the royal family is very keen on thwarting any form of rebellion against the government.
• Freedom of Speech and Expression This implies that autonomy is the epitome of the freedom of expression in many ways. Perhaps, this is the point of diversion between autonomy and restriction of the freedom of expression.
• Frank Kermode: Timelessness and Freedom of Expression In his story, Frank Kermode tries to establish a conventional identity of time, by incorporating issues that subject to the needs of humanity, and which must confer to the expectations of the community.
• Why the Philosophes Place Freedom of Expression in the First Place
• Improving the Freedom of Expression in Social Network Sites in China
• Celebrities’ Privacy vs. Freedom of Expression
• Computer Versus Students’ Freedom of Expression
• Correlation Between Democratic Institutions in States and Freedom of Expression
• Defining and Analysing Freedom of Expression
• Education, Freedom, and Freedom of Expression as a Citizen
• The Controversy of Racism and Freedom of Expression
• Education: Student and Freedom of Expression
• John Stuart Mill’s Case for Freedom of Expression
• The Link Between First Amendment and the Freedom of Expression
• How Media Censorship Violates Freedom of Expression and Impacts Businesses
• Human Dignity and Freedom of Expression in Media
• How the Attitudes and Freedom of Expression Changed for African Americans
• The Problem of Internet Censorship and Freedom of Expression
• John Mill: Why Freedom of Expression Is Important
• Marilyn Manson and His Pushing the Right to Freedom of Expression
• Nobel Laureate André Gide on the Freedom of Expression
• Obscenity and the Constitutionality of Freedom of Expression
• Positive and Negative Aspects of Freedom of Expression
• Reframing Risky: Queer Temporalities, Teenage Sexting, and Freedom of Expression
• Researchers and Philosophers’ Views on Freedom of Expression
• Should Artists Have Total Freedom of Expression
• The Link Between Social Change and Freedom of Expression
• Overview of Supreme Court Cases Freedom of Expression
• Tension Between Data Protection and Freedom of Expression
• Controversies Surrounding Banning of Books in the Context of Freedom of Expression
• The Debate Between Music Censorship and Freedom of Expression
• The First Amendment to the Constitution on the Freedom of Expression
• The Right and Wrong of Advertising With the Freedom of Expression
• Three Underlying Assumptions of the Argument in Favor of the Freedom of Expression
• Tricky Balance Between the Freedom of Expression and Censorship Plans in the U.S.
• Teachers’ and Students’ Right to Freedom of Speech and Expression
• Linking Freedom of Expression and the Right to Education
• The Conditions When Freedom of Expression Should Be Regulated
• Peculiarities of Freedom of Expression in Universities
• Analysis of Freedom of Expression in Malaysia
• Should Freedom of Speech and Expression Be Absolute
• Overview of Freedom of Expression Features in Turkey
• Freedom of Expression as a Fundamental Right
• Trial by Media: Freedom of Expression in Modern Technological Era
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Dissertations / Theses on the topic 'Freedom of expression'

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Gaiba, Chiara. "Blackface and Freedom of Expression." Bachelor's thesis, Alma Mater Studiorum - Università di Bologna, 2017. http://amslaurea.unibo.it/13795/.

Bouhot, Perrine. "Freedom of expression under apartheid." Thesis, University of the Western Cape, 2009. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_6820_1298631852.

Over the past decades, transitions from repressive rule to democracy have increased all over the world, aiming at establishing disclosure and accountability for the crimes perpetrated. One way of assessing the &ldquo solidity&rdquo of these new democracies is to look at their provisions on freedom of expression, one of the most precious and fragile rights of man. The right to freedom of expression was recognised by classical traditional liberal theory as from the eighteenth century. It considered it as a useful tool to enhance true statements within the &ldquo marketplace of ideas&rdquo . Liberals also believed that such right was a prerequisite for individual autonomy and selffulfillment. They claimed that it strengthened democracy, by allowing individuals to receive all information on issues of public concern which they needed to vote intelligently. Lastly, they argued that it promoted the ideal of tolerance. Since then, the right to freedom of expression has been considered a cornerstone of democracy and protected as such by international instruments among which the International Covenant on Civil and Political Rights of 1966, the African Charter for Human and Peoples&rsquo Rights of 1981 and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

Musa, Abdul Samat. "Freedom of expression in English law." Thesis, University of Manchester, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.237410.

Embling, Geoffrey. "Political correctness and freedom of expression." Thesis, Rhodes University, 2017. http://hdl.handle.net/10962/40873.

O'Rourke, Kevin Charles. "John Stuart Mill and freedom of expression." Thesis, University College London (University of London), 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.311962.

Laughlin, Cindy. "Freedom of Expression and the College Press." Thesis, The University of Arizona, 1997. http://hdl.handle.net/10150/292229.

Maher, Julie. "Manifesting religious belief : a matter of religious freedom, religious discrimination, or freedom of expression?" Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:eaf72dbe-ca5e-4767-97a6-b28c928be742.

Abanazir, Suat Cem. "Freedom of expression and its limits in sport." Doctoral thesis, Universitat Pompeu Fabra, 2019. http://hdl.handle.net/10803/667926.

Nkounga, Francois Joseph. "Flag-burning in the USA - freedom of expression ?" Thesis, Linnéuniversitetet, Institutionen för statsvetenskap (ST), 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-39741.

Fakhrtdinov, Renat. "Freedom of Expression Online : Ban of Political Expression on the Internet in Russia." Thesis, Umeå universitet, Juridiska institutionen, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-161971.

Gunes, Sema. "The importance of Turkishness and its affects on the Freedom of Expression : EU, Freedom of Expression, TPC 301, and the Armenian issue." Thesis, Jönköping University, JIBS, Political Science, 2010. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-12680.

Van, Vollenhoven Willem Johannes. "Learners’ understanding of their right to freedom of expression in South Africa." Thesis, University of Pretoria, 2005. http://hdl.handle.net/2263/25528.

Botha, Joanna Catherine. "Hate speech as a limitation to freedom of expression." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/9054.

Loverdou, Athina Fotini. "Copyright and freedom of expression : revising the Berne Convention." Thesis, Queen Mary, University of London, 2007. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1539.

Jurgens, Hishaam. "Investigating the conflict between freedom of religion and Freedom of expression under the South African constitution." Thesis, University of the Western Cape, 2012. http://hdl.handle.net/11394/4099.

Tsiga, I. A. "To tell freedom : A study of black South African autobiography." Thesis, University of Essex, 1987. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.377927.

Crawford, G. Mark. "Free speech : the Canadian model; a study of freedom of expression under the Charter of Rights of Freedoms." Thesis, University of Oxford, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.390317.

Byrne, John Alexander (Alex). "The politics of promoting freedom of information and expression in international librarianship." Thesis, The University of Sydney, 2003. http://hdl.handle.net/2123/555.

Byrne, John Alexander (Alex). "The politics of promoting freedom of information and expression in international librarianship." University of Sydney. Government and International Relations, 2003. http://hdl.handle.net/2123/555.

De, Klerk Frits. "Joernalistieke privilegie : 'n kritiese analise van 'n joernalis se regsplig om vertroulike bronne van inligting bekend te maak met besondere verwysing na die reg op vryheid van uitdrukking /." Pretoria : [s.n.], 2005. http://upetd.up.ac.za/thesis/available/etd-02072007-154234/.

Adjei, William Edward. "The protection of freedom of expression in Africa : problems of application and interpretation of Article 9 of the African Charter on Human and Peoples' Rights." Thesis, University of Aberdeen, 2012. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=207458.

Guy, Robert L. Holsinger M. Paul. "Religious expression in public education." Normal, Ill. Illinois State University, 2001. http://wwwlib.umi.com/cr/ilstu/fullcit?p3006619.

Case, Erik S. "State Level Causes of Terrorism: Limits on Political Expression." Thesis, University of North Texas, 2009. https://digital.library.unt.edu/ark:/67531/metadc12092/.

Kanakanian, Arminé. "The situation of freedom of expression - Turkey and the European Union." Thesis, Örebro University, Department of Behavioural, Social and Legal Sciences, 2007. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-2300.

This study will shed light on the meaning of article 301 of the Turkish Penal Code and its

inconformity with fundamental principles of the European Union and fundamental human

rights. The trial of Nobel Prize winner, Mr Orhan Pamuk and the killing of Mr Hrant Dink in

January 2007 have both put focus on the notorious article 301 of the Turkish Penal Code.

The purpose of the study is to answer the main question; In what way does article 301 of the

Turkish Penal Code infringe the freedom of expression outlined in article 10 of the European

Convention on Human Rights and what should the European Union do about it?

The conclusion is that article 301 of the Turkish Penal Code infringes the right to freedom of

expression stated in article 10 of the European Convention on Human Rights. It does

undermine the essence of the right by invoking a wide range of self-censorship, by its

ambiguous language and by the way it is applied. The restrictions are interpreted broadly and

leave nothing but an arbitrary article left to apply for the courts. The European Union holds

the power to influence Turkey and can therefore enforce an abolition of article 301 of the

Turkish Penal Code. Time will tell if Turkey will fully safeguard freedom of expression as it

is stated in article 10 of the European Convention of Human Rights and in the praxis of the

European Court of Human rights and the European Court of Justice.

Loaiza, Tapia José Sebastián, Falcon Diana Vanessa Ocampo, and Castillo Alfredo Junior Torres. "Freedom of expression on everyone's lips Interview with Dr. Betzabé Marciani." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/118623.

Maganyane, Tumelo Arnols. "Promoting learners’ right to freedom of religious expression in public schools." Diss., University of Pretoria, 2021. http://hdl.handle.net/2263/80460.

Turrina, Michela <1991&gt. "the human right to freedom of expression in the contemporary world." Master's Degree Thesis, Università Ca' Foscari Venezia, 2016. http://hdl.handle.net/10579/8056.

Warner, Charles David. "Opinions of Administrators, Faculty, and Students Regarding Academic Freedom and Student Artistic Expression." Diss., Virginia Tech, 1999. http://hdl.handle.net/10919/27553.

Svernlöv, Oscar. "Media in transition : The cost of increased freedom of expression in Ethiopia." Thesis, Stockholms universitet, JMK, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-183178.

Maheshwari, Malvika. "Violent regulation and artists in India : the transformation of freedom of expression." Paris, Institut d'études politiques, 2011. http://www.theses.fr/2011IEPP0028.

Byrne, Alex. "The politics of promoting freedom of information and expression in international librarianship." Connect to full text, 2003. http://hdl.handle.net/2123/555.

Case, Erik S. Sahliyeh Emile F. "State level causes of terrorism limits on political expression /." [Denton, Tex.] : University of North Texas, 2009. http://digital.library.unt.edu/ark:/67531/metadc12092.

Lowe, James Joseph Greaves. "Freedom of artistic expression under Article 10 of the European Convention on Human Rights." Thesis, University of Edinburgh, 2017. http://hdl.handle.net/1842/23442.

Vinberg, Aline. "Yttrandefrihet- till vilket pris som helst? : En studie om yttrandefrihet och dess gränsdragning." Thesis, Uppsala universitet, Teologiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-306915.

Delin, Louise. "Hyperlinks to Illegal Content and Balancing Copyright Law and the Freedom of Expression." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-353696.

Glaviano, Breeanne Nicole. "Ambush Marketing in Mega-Sporting Events: Drawing the Line with Freedom of Expression." Thesis, The University of Arizona, 2013. http://hdl.handle.net/10150/297615.

Reynolds, Graham John. "Towards reconsideration of the intersection of the charter right to freedom of expression and copyright in Canada." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:b27a9d3a-c0b7-497e-a8ad-29b861b78b32.

Groh, Sabine. "Die Bonusregelungen des 26 Abs. 2 S. 3 des Rundfunkstaatsvertrages /." Frankfurt am Main [u.a.] : Lang, 2005. http://www.gbv.de/dms/sbb-berlin/497944030.pdf.

Harrison, Nicholas. "Circles of censorship : La Censure and its metaphors in history, psychoanalysis and literary culture." Thesis, University of Cambridge, 1993. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.307985.

Abd, Jalil Juriah. "Legal aspects of television broadcasting in Malaysia and the challenge of new media technologies." Thesis, University of Exeter, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.341185.

Novak, Marja. "The change from a socialist to a market-led media system in Slovenia." Thesis, University of Westminster, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.480621.

Tabbara, Tarik. "Electronic mass media and freedom of expression in Germany, the United States and Canada." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp01/MQ29842.pdf.

Tabbara, Tarik. "Electronic mass media and freedom of expression in Germany, the United States and Canada." Thesis, McGill University, 1996. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=27467.

Morusoi, Eric Kibet. "The right to freedom of expression and its role in political transformation in Kenya." Thesis, University of Pretoria, 2016. http://hdl.handle.net/2263/60070.

Barison, Laura <1997&gt. "Hate speech in international law: searching for the complex balance with freedom of expression." Master's Degree Thesis, Università Ca' Foscari Venezia, 2022. http://hdl.handle.net/10579/21309.

Ismail, Nawang Nazli. "Political blogs and freedom of expression : a comparative study of Malaysia and the United Kingdom." Thesis, University of Edinburgh, 2015. http://hdl.handle.net/1842/10658.

Reynolds, Amy. "Emancipation and expression : how abolitionists helped define free speech in the early nineteenth century /." Digital version accessible at:, 1998. http://wwwlib.umi.com/cr/utexas/main.

Andersson, Erik. "Political Rights for Refugees in Uganda - A Balance Between Stability in the State and Respect for Human Rights." Thesis, Umeå universitet, Juridiska institutionen, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-88167.

Hellström, Joanna. "Where the Red Line is Drawn : A Study on Self-censorship in Ugandan Media." Thesis, Uppsala universitet, Statsvetenskapliga institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-306636.

Wotoch, Beata. "Hate Speech – Freedom of Expression orDiscrimination? : Views of the Japanese University Students and theGovernmental Stance." Thesis, Stockholms universitet, Avdelningen för japanska, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-131875.

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Freedom of Expression: An Essay on Rights, Relation and Recognition

(Note: This essay is a shorter version …)*

[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction.[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction. 1  The story, "Pamela's Ordeal," graphically recounted the narrator's rape, torture, and murder of a woman who was given the same name as one of Baker's classmates. A university investigation found that, in addition to writing several similar stories, Baker had also engaged in a long email exchange with a Canadian man, in which the two had shared their desires to commit sexual violence against young women, discussed how they would go about it, and made vague plans to meet.

[2]  Based on this information, the university suspended Baker and banned him from campus. A week later, he was arrested and charged with the federal offense of transmitting threats in interstate or foreign commerce. The charges were later dismissed by the United States Court of Appeals for the Sixth Circuit, which ruled 2 to 1 that Baker's conduct did not amount to a threat under federal law. 2

[3]  The Baker case sparked intense controversy not only within the university, but across the country and on the Internet. On one side, Catharine MacKinnon and others asserted that Baker's story constituted a form of assaultive speech, which was deeply degrading to the woman that it named and threatening to her sense of safety. Others, including officials of the American Civil Liberties Union, responded that while the story was abhorrent, it was merely fiction or fantasy, fully entitled to constitutional protection. 3

[4]  In many ways, the Baker case is typical of contemporary disputes over freedom of expression. Whether they focus on hate speech, pornography, flagburning, cigarette advertising, abortion-clinic demonstrations, protecting the identities of sexual assault victims, tobacco advertising, violent entertainment, the National Endowment for the Arts, Internet regulation, or other issues, these controversies tend to have the same basic structure. 4  Those who advocate the regulation of a particular kind of expression contend that it causes serious harm to individuals, groups, or the community at large. Opponents are often skeptical about the seriousness of this injury. In any event, they argue, the First Amendment denies government the power to prevent such harm through the suppression of speech. 5

[5]  Of course, it is difficult to deny that speech can sometimes be regulated consistent with the First Amendment. Few, for example, would question the government's authority to punish incitement of violence or false advertising. 6  Yet we have no well-developed and generally accepted view of when regulation is legitimate. In the absence of any common ground to appeal to, First Amendment disputes seem increasingly bitter and irresolvable.

[6]  It is hard to see how this stalemate can be broken without a more general theory of the scope of free expression–a view that integrates both the justifications and the limits of this freedom into a coherent whole. This essay makes a start toward developing such a theory. Its central thesis is that freedom of speech is limited by the fundamental rights of other individuals and of the community.

Natural Rights, Social Welfare, and the First Amendment

[7]  As I have shown elsewhere, this idea was regarded as axiomatic when the First Amendment was adopted. 7  Eighteenth-century Americans drew on a variety of sources for their understanding of free speech, including the common law and the civic republican tradition. 8  But the most comprehensive framework that they looked to was provided by natural rights theory. According to this theory, freedom of speech is a right inherent in human nature as well as republican citizenship. Like all such rights, however, it is bounded by the rights of others. 9  The classic example is defamation. While I have a right to free speech, others have a right to reputation. Government is instituted to protect rights against wrongful injury. On this view, the state has not only the authority but the duty to restrict speech when it unjustifiably defames others.

[8]  Natural rights theory thus suggests a rather straightforward principle: that freedom of speech is limited by the rights of others, and that the law may protect these rights against expression that violates them. Although this principle was widely held when the First Amendment was adopted, it no longer holds a central place in American constitutional theory or doctrine. Instead, we now generally view First Amendment problems in terms of an opposition between freedom of speech and "state interests."

[9]  To understand this shift, we need to briefly explore the transformation of American jurisprudence after the Civil War. 10 During the late nineteenth and early twentieth centuries, the theory of natural rights gave way to a more positivist and utilitarian conception of law. On this view, rights are not inherent in individuals, but derive their force from the positive law of the state. The purpose of law is to promote social welfare, not to protect individual rights as such.

[10]  The advent of this view undermined the traditional rationale for protecting free expression. Rather than a right of nature or of democratic citizenship, free speech was represented as merely one interest to be weighed in the utilitarian calculus. There was nothing distinctive about speech that entitled it to special protection, or that placed it beyond the authority of the state to regulate like any other form of activity.

[11]  The central task of modern First Amendment thought has been to reconstruct a justification for freedom of speech within the framework of post-natural-rights jurisprudence. During the early twentieth century, leading defenders of the First Amendment such as Harvard law professor Zechariah Chafee, Jr., and Justices Oliver Wendell Holmes and Louis D. Brandeis emphasized the importance of free speech for democratic self-government and the search for truth. For these reasons, they argued, the social interest in free speech was so great that it should give way only where speech presented a "clear and present danger" to other important social interests. 11

[12]  By the middle of the century, the "clear and present danger" test had evolved into a general balancing of speech against other social interests. As Justice Hugo Black forcefully argued, this approach failed to provide reliable protection for speech. 12  In more recent years, free speech has once more come to be regarded as a right. But this revival of the idea of rights in First Amendment jurisprudence has not extended to the other values that may be harmed by speech. These values continue to be characterized as social interests or (since the state is regarded as the spokesman for such interests) as state interests.

[13]  In this way we have come to conceive of First Amendment issues as clashes between free speech rights and state interests–a term within which the rights of others have been absorbed. When the issue is posed in this way, we seem to face a tragic dilemma in which the more we protect speech, the more we must sacrifice other rights, and vice versa. It is for this reason above all that contemporary free speech controversies appear so intractable, and that the disputants so often seem to talk past each other. These problems, which go to the heart of modern First Amendment theory, should lead us to consider returning to a rights-based approach.

Free Speech in a Framework of Rights

[14]  In constructing a rights-based theory of the First Amendment, I shall draw on the liberal natural rights tradition identified with Locke and Kant–a tradition which, as we have seen, did much to shape the ideological background of the First Amendment, and which continues to represent a deep current in American thought. 13  On this view, rights are rooted in the concept of human liberty. The core meaning of liberty is self-determination: a free person is one who determines her own thoughts and actions, rather than being determined by something other than herself. 14 Natural rights theory then develops the content of rights by exploring what it means to be a free person in various spheres of life. These include (1) the individual's existence in the external world; (2) her inner life and its expression to others; (3) her social and political life; and (4) her intellectual and spiritual activity. 15  In the following sections, I shall show that these four aspects of liberty not only provide the major justifications for free speech, but also give rise to other fundamental rights. When speech violates these rights, I argue, it may properly be regulated unless its value is so great as to outweigh the injuries that it causes.

Free Speech and External Rights

[15]  The first, and simplest, way to understand freedom of speech is as an aspect of liberty in general–the exercise of an individual's natural capacities for thought and expression. On this view, free speech falls within the traditional natural rights to life, liberty, and property. 16  But of course other individuals also have a right to be secure in their persons and property. Speech violates this right when it amounts to an imminent assault; when it conveys a serious threat of future violence; or when it incites third parties to attack others. Since individual rights exist under the protection of the community, such speech may also constitute a breach of the public peace, and may thus result in criminal as well as civil liability.

Free Speech and Rights of Personality

[16]  To be fully free, a person must be free not only externally but also in her inner life. This brings us to a second category of rights, which I shall call rights of personality. Like the traditional triad of life, liberty, and property, these rights are rooted in our nature as autonomous beings. The focus of self-determination has shifted, however: rather than acting in the external world, the self now turns inward to shape its own intellectual and emotional life. Rights of personality reflect what it means to be a free person in this internal realm.

[17]  First Amendment rights may be understood in this way as well. In determining his own thoughts, beliefs, values, and emotions, an individual shapes his inner self or personality. He further realizes himself through the expression of his thoughts and feelings to others. It follows that unjustified restrictions on speech and thought are wrongful not merely because of the limits they impose on outward liberty, but also in a deeper way, because they obstruct the individual's right to autonomously determine, express, and realize his own personality.

[18]  At the same time, individuals also have other rights of personality, some of which may be violated by speech. First, speech can cause substantive injury through the intentional infliction of emotional distress. Second, I would argue that severely abusive speech infringes the inviolability of personality, in much the same way that offensive battery (an unauthorized touching that "offends a reasonable sense of personal dignity" 17 ) violates bodily integrity. Third, speech and related forms of conduct can constitute an invasion of privacy, or the right to maintain the integrity of one's personal life by preserving the boundary that separates it from other persons. Finally, defamation violates the right to reputation, which can be understood as the social dimension of personality.

Free Speech and Community

[19]  Self-determination takes place not only on an individual but also on a communal level. This leads to the third justification for free speech: that it is central to democratic self-government. In a classic statement of this view, Alexander Meiklejohn invokes the image of a traditional town meeting. Citizens must hear all sides of an issue, he argues, if they are to reach the wisest and most fully informed decisions. 18

[20]  For Meiklejohn, this image also suggests the appropriate limits of free speech. The town meeting cannot function unless its members observe some rules of order, such as the rule that forbids personal abuse in debate. Speech of this kind, he says, obstructs the deliberative process, and thus "threatens to defeat the purpose of the meeting." For this reason, it is not protected by the First Amendment. 19

[21]  This highlights a crucial point about the nature of free speech rights. When viewed in terms of general liberty or self-realization, free speech was an essentially individual right–a right that in principle could be exercised by a single individual, without any interaction with others. In contrast, political free speech can be understood as a relational right–a right to interact with others in a particular way. It is a right to engage in discourse with other individuals who have the same rights of citizenship and participation, and who share certain interests as a community. The right to political participation therefore carries with it a duty to respect the corresponding rights of other citizens and of the community itself. This limitation is not imposed from the outside, by the existence of other kinds of rights, but is an internal limit that arises from the very nature of the right to political speech.

Free Speech and the Search for Truth

[22]  The last major justification for free speech is that it is necessary for the pursuit of truth. In addition to the instrumental value that knowledge has in furthering other ends, classical theorists such as Milton and Mill hold that the search for truth has intrinsic value in developing people's intellectual capacities, and thereby realizing their nature as rational beings. 20

[23]  Once again, this rationale not only provides a basis for free speech, but also points to some constraints on that freedom. First, in asserting a right to intellectual freedom, an individual appeals to her status as a rational being. But this status is one that she shares with human beings in general. It follows that an individual cannot consistently assert this right and at the same time refuse to recognize others as rational beings. Second, as Professor Susan Williams demonstrates, in many ways truth is intersubjective, and can be attained only through communication with others. 21  To this extent, the search for truth also may be understood as a relational right which requires respect for other participants.

[24]  It is important to stress the limited role of these two constraints. I do not mean to imply that they provide an affirmative justification for regulating speech. For the liberal tradition, the coercive powers of government do not extend to matters of thought or belief as such; government may never restrict speech simply because of disagreement with it or fear that it will undermine the truth. Instead, my contention is simply that speech that violates these constraints has less value for the search for truth. This means that there is a weaker argument for protecting such speech in cases where it can be shown to violate other rights.

Conflicts of Rights

[25]  On the view outlined here, free speech must be exercised with due regard for the rights of others. It does not follow, however, that speech must always give way to other rights. In some cases, an apparent conflict can be resolved by adjusting the boundaries of the competing rights. Even when this is not possible, speech that infringes other rights is only presumptively wrongful, for it may have such value that it should be regarded as justified despite the injury that it causes.

[26]  There are three related ways of approaching conflicts of rights. The first is to balance the rights in order to determine which has more value. Of course, to do this we need a common standard by which to measure them. For the rights-based theory, that standard may be found in the four elements of liberty that justify these rights in the first place. Thus, rights have value as aspects of (1) external freedom, (2) internal freedom to develop and express one's personality, (3) freedom to participate in social and political life, and (4) intellectual and spiritual freedom to pursue meaning and truth. The ultimate question is which right, at the margin, is more important as an aspect of human liberty.

[27]  In contrast to balancing, which involves an external comparison of rights, the second approach explores whether there is any internal relationship between them. 22  For example, individuals cannot speak freely unless they feel secure against violence. In this sense personal security is the most basic of rights. Thus, speech should not be protected when it is used to seriously threaten the safety of others.

[28]  At the same time, it is important to recognize that the relationship between rights does not necessarily run in only one direction. Thus, while personal security is a necessary condition for freedom of speech, the converse is also true. Free speech is essential to political liberty, which the liberal democratic tradition regards as the ultimate safeguard of all other rights. 23  It follows that political speech should not be restricted on the basis of merely speculative fears of injury, but only when it poses a direct and substantial threat to other rights.

[29]  This discussion of the interrelatedness of rights suggests a further point: that rights are integral to a larger whole. This leads to a third way of resolving conflicts, which is to ask which right, under the circumstances, is most important to the system of constitutional liberty as a whole. For example, while individuals have a right to reputation, in the case of public officials that right must give way to the community's right to assess their character and performance, a right that is vital to democratic government. For this reason, the Supreme Court held in New York Times v. Sullivan that defamatory statements regarding the official conduct of public officials are constitutionally protected unless knowingly or recklessly false. 24

[30]  In some cases, then, speech should be protected despite the injury it causes to other rights. This principle is subject to an important constraint, however: an act of speech cannot be privileged merely because the speaker values the wrongful consequences of the act, but only for some other reason. For example, while an individual may have a right to threaten another in self-defense, there can be no right to threaten merely because one desires to invade another's right to personal security.

The Rights-based Theory and Contemporary First Amendment Jurisprudence

[31]  As a way of contrasting the rights-based theory with current free speech jurisprudence, I would like to consider the Supreme Court's 1989 decision in Florida Star v. B.J.F. 25  After B.J.F. was raped at knifepoint by an unknown assailant, she reported the crime to the county sheriff's department. A few days later, theFlorida Star published a full account of the rape which identified her by name. A jury later ordered the newspaper to pay B.J.F. $100,000 in damages for violating a Florida statute that made it unlawful to publish the names of sexual assault victims.

[32]  By a 6 to 3 vote, the Supreme Court overturned the award under the First Amendment. Justice Marshall's opinion for the majority frames the issue as a conflict between the press's right to publish truthful, lawfully obtained information, on one hand, and what he calls the "state interest" in protecting the privacy and safety of rape victims, on the other. Marshall recognizes that this is an "interest of the highest order," but asserts that, under the circumstances, the statute was not necessary to protect them, because the government itself had inadvertently given the Star's reporter access to B.J.F.'s name. 26  For this reason, the Court held the application of the law invalid under the "strict scrutiny" test, which holds that restrictions on the content of expression are presumptively unconstitutional and will be upheld only when they can be shown to be necessary to promote a compelling governmental interest.

[33]  Florida Star would look very different from a rights-based perspective. On this view, the statute's purpose was not to promote the interests of the state, but to protect the rights of the victim. The government's own failure to comply with the law should not have the effect of waiving B.J.F.'s rights, or relieving the newspaper of its own duty to respect them. Instead of applying a standard heavily weighted toward one side of the balance, the rights-based view would compare the two rights in terms of their value for human liberty. On one hand, the Star's action seriously invaded B.J.F.'s fundamental rights to privacy and personal security. On the other hand, it is difficult to see any important value served by disclosing her name, at least before anyone has been charged with the crime. Under the rights-based theory, then, the Supreme Court clearly came out the wrong way in Florida Star. 27

Hate Speech

[34]  Let us now explore how this theory would apply to the problem of hate speech–whether the First Amendment should protect expression that abuses or degrades others on the basis of such traits as race, ethnicity, gender, sexual orientation, and religion. 28  In approaching this issue, the theory begins with the concept of recognition.

[35]  For the natural rights tradition, rights are ultimately rooted in personhood. It follows that an individual cannot enjoy rights in relation to others unless they recognize him as a free person. Recognition is the most fundamental right that individuals have in relation to others–a right that lies at the basis of all their other rights. 29

[36]  From a rights-oriented perspective, the core problem with hate speech is that it denies recognition to its targets. In fact, I believe that hate speech can best be defined as expression that intentionally denies recognition to others, and thereby expresses hostility towards them. In addition to conflicting with the very basis of right, hate speech in many cases violates the concrete rights of individuals and the community. In such cases, I would hold that hate speech may be regulated, except where its value is sufficient to justify the injuries that it inflicts. In developing this view, it will be useful to begin with private hate speech, or that directed toward particular individuals, and then turn to the problem of public hate speech, such as that involved in the Skokie affair.

Private Hate Speech

[37]  In some cases, hate speech that relates to particular individuals will amount to an assault, threat, or incitement to violence. And of course group-based insults are also one of the most common forms of "fighting words." 30  In all these cases, the speech infringes the targets' right to personal security, and/or the community's right to the peace. 31  Private hate speech may also violate rights of personality, through intentional infliction of emotional distress, attacks on personal dignity, or invasion of privacy. Finally, hate speech contravenes the right to equality by denying all of these rights on the basis of race or other invidious grounds. 32

[38]  Insofar as they violate these rights, acts of private hate speech are presumptively wrongful under the rights-based theory. For this reason, they should be held unprotected unless they have sufficient value to justify the injuries that they cause.

[39]  As an illustration, consider the classic form of hate speech in the United States–the burning of a cross to express hostility toward African-Americans or other racial, ethnic, or religious minorities. Suppose that the Ku Klux Klan burns a cross at night in front of the home of an African-American family that has recently moved into a white neighborhood, for the purpose of terrorizing the family and causing them to move. It is difficult to imagine a more serious invasion of personal security. If cross-burning occurs inside the family's yard, it will also violate their property rights, as well as criminal laws against trespass and arson.

[40]  The Klansmen's conduct also infringes the family members' rights of personality. The act is a flagrant and deeply offensive intrusion into their private lives, and thus constitutes an invasion of privacy. In addition, it is difficult to conceive of a clearer case of intentional infliction of emotional distress.

[41]  Does cross-burning, when it is directed against particular individuals, have sufficient value to justify the injuries that it causes? Undoubtedly it constitutes a form of self-expression. As we have seen, however, an act of expression cannot be privileged on account of the very aspect that makes it wrongful in the first place. A person has no right to pursue her own self-realization when it is defined in terms of denying the self-realization of others, and is directed toward them.

[42]  It might also be argued that the Klansmen's conduct should be protected because it is intended, at least in part, to express a political view. Even if cross-burning is entitled to protection as political speech, however–an issue that we shall come to shortly–it does not follow that this protection should apply to acts directed against particular persons. The Klan could communicate its political message just as effectively by burning a cross elsewhere, without inflicting serious injuries to specific individuals. Or, if this is not the case, then the increased effectiveness arises solely from the wrongful aspect of the conduct, the terror and degradation that it inflicts on the family. For these reasons, cross-burning directed toward particular persons should not be protected as free expression.

[43]  So far, my claim has been that hate speech may be restricted when it falls within an unprotected category of speech, such as fighting words. Suppose, however, that a jurisdiction chooses to ban not fighting words in general, but only those based on race or other group-based traits. In R.A.V. v. City of St. Paul, the Supreme Court ruled 5 to 4 that such laws are unconstitutional. Such a selective ban, said Justice Scalia, would violate the basic principle that government may not discriminate based on the content of speech. 33

[44]  Justice Scalia's analysis in R.A.V. is extremely complex, and I have criticized it in some depth elsewhere. 34  But the short response is this. While ordinary assaults or fighting words violate the target's rights, hate speech strikes at the very existence of those rights, by denying the target's status as a person and a member of the community. In this way, hate speech inflicts a deeper injury, and thus calls for a stronger response, than more ordinary kinds of assaultive speech.

Public Hate Speech

[45]  Finally, let us turn to the most difficult and controversial problem–that of public or political hate speech. Suppose that (as in the Skokie case) a group of neo-Nazis or Klansmen plan to hold a march in full regalia through a predominantly Jewish or African-American neighborhood, in order to express their belief that those groups should be subjected to segregation, deportation, or genocide. 35  The question is whether such expression should be protected because of its political character.

[46]  The protection of political speech is correctly regarded as a central concern of the First Amendment. But while this right is fundamental, it is not absolute. Instead, as I have suggested, it is best understood as a relational right–a right to engage in discourse with one's fellow citizens, in a way that respects their own rights of membership and participation.

[47]  I would argue that political hate speech violates these rights in two main ways. First, it infringes the rights of target-group members to be treated as free and equal citizens who are capable of participating in self-government. In this way it contravenes their rights as members of the political community. Such speech also violates the integrity of the deliberative process by undermining the possibility of reasoned discourse. As Meiklejohn observes, such discourse depends on the existence of mutual respect among citizens. 36

[48]  Second, in a democratic society, the people not only govern but also are governed. Political hate speech violates the rights of its targets in this capacity as well. Individuals have a fundamental right to recognition by the community that governs them. This may be regarded as the core meaning of the Thirteenth and Fourteenth Amendments to the Constitution, which abolished slavery and extended the rights of citizenship to all Americans. But this duty of recognition, I would argue, is one that binds not only the community itself but also its members. As citizens, individuals have a right to share in the political power of the community. With this right comes a corresponding duty to use that power in accord with the same obligations that the community itself has. Thus, citizens have a duty to recognize those over whom they exercise political power. They breach this duty when they engage in hate speech.

[49]  For these reasons, political hate speech should be considered presumptively wrongful under the rights-based model. The question then becomes whether it should nevertheless be privileged because of its value as political speech.

[50]  Following Meiklejohn, we might regard the paradigm case of political speech as expression that is addressed to the political community regarding an issue that it must decide. Judged by this standard, political hate speech lacks full value for two reasons. First, it is directed not to the community as a whole, but only to part of it–those who are not minorities. Insofar as it addresses the latter at all, it treats them not as citizens, but as objects of hatred and contempt. Second, when hate speech proposes extreme measures like segregation, deportation, or genocide, it does not relate to a matter of public policy for the people to decide, for no group of people can have the right to impose such measures on others.

[51]  Of course, to say that hate speech lacks full value is not to say that it has no value at all. For example, it is sometimes argued that hate speech provides useful information about the prevalence of racism, or that it helps us develop the social virtue of tolerance. 37  Arguments of this sort do not, however, assert that hate speech has any value in itself, or that it makes a legitimate contribution to public debate. Instead, the speech is to be valued for something else that we may be able to find in it. This indirect value does not seem sufficient to outweigh the serious injuries that hate speech causes both to its targets and to the polity as a whole.

[52]  Nor should public hate speech be protected because of its contribution to the pursuit of truth. As I have suggested, the search for truth requires that human beings recognize one another as reasonable beings who are capable of participating in a common enterprise of inquiring after truth. Because hate speech denies recognition to others, it can make no direct contribution to this process. And, once more, while hate speech may have some indirect value in this respect, that value does not seem sufficient to outweigh the injuries that it causes to the rights of others. 38

[53]  However one resolves the difficult issues surrounding public hate speech, it is clear that, under the rights-based theory, there is a realm of thought and expression that is beyond the legitimate reach of the law. Thus freedom of thought can never properly be restricted, since a person's inner thoughts can never violate the rights of others. The same is true of expression that is not communicated to others. This right of private thought and expression probably should also apply to private conversations, and to internal expression within small groups. 39  Scientific and intellectual inquiry should also be protected; 40  expression comes within the sphere of law only when it is directed toward affecting the rights of others.

[54]  In conclusion, let us briefly return to the case with which we began, that of Jake Baker. Assuming that, when Baker posted his story to the Internet, he did not intend for it to be read by anyone who would reasonably regard it as expressing a serious intent to assault the woman that it named, he should not be held to have made a criminal threat. Baker clearly violated the woman's rights of personality, however. In addition to recklessly inflicting severe emotional distress, his conduct constituted a profound invasion of her right to personal dignity and inviolability. Finally, whatever value the story may have had as self-expression or a contribution to culture, it was not necessary for him to use the name of an actual person. Because he could have achieved the same ends without violating the rights of others, his conduct should not be protected under the First Amendment.

* This essay is a shorter version of Steven J. Heyman,  Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression , 78 BOSTON UNIVERSITY LAW REVIEW– (forthcoming Dec. 1998) [hereinafter  Righting the Balance ]. It was presented at the Chicago-Kent Legal Theory Workshop, and at the inaugural meeting of the Working Group on Law, Culture and Humanities held at Georgetown University Law Center, Washington, D.C., in March 1998. I am grateful to the participants in that session, especially Vincent Blasi, Charles Lawrence, Milton Regan, and Susan Williams, for their thoughtful comments on the issues raised by this essay, and to Alison Baldwin, Anita Bernstein, Jacob Corré, Michael Curtis, David Gerber, Carol Miller, Vincent Samar, and Steven Wilf for their reading of earlier drafts. I also learned much from conversations with Thomas Grey and Robert Post. Kerry Bartell, Jennifer O'Neill, and Lisa Weier provided valuable research assistance. Finally, I should like to express my deep gratitude for the research support provided by the Norman and Edna Freehling Scholars Fund, which made this project possible.

If you are outside the US and would like to obtain a copy of the long version of this essay (approximately 165 pages), contact the Editor at  [email protected] . back

• The facts of the Baker incident are recounted in United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), and United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997), as well as in news accounts such as Megan Garvey,  Crossing the Line on the Info Highway,  WASHINGTON POST, March 11, 1995, at H1. The short story is reproduced in Alkhabaz, 104 F.3d at 1497-98 n.1 (Krupansky, J., dissenting). back
• United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). back
• See, e.g., All Things Considered  (National Public Radio broadcast, March 15, 1995) (transcript available on NEXIS, News library, Arcnws file) (remarks of Catharine MacKinnon); Agence France Presse,  Court Upholds E-mail as Free Speech,  Jan. 30, 1997 (transcript available on NEXIS, News library, Curnws file) (quoting Howard Simon, executive director of American Civil Liberties Union of Michigan, asserting that "[e]ven sick fantasies are free speech" protected by the First Amendment). back
• For the leading American cases on hate speech, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.),  cert. denied,  439 U.S. 916 (1978) (ruling that members of a neo-Nazi organization have a First Amendment right to march in the predominantly Jewish suburb of Skokie, Illinois), and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a city ordinance banning the display of swastikas, burning crosses, and like symbols violates the First Amendment). On pornography, see American Booksellers Assn. v. Hudnut, 771 F.2d 323 (7th Cir. 1985),  aff'd mem.,  475 U.S. 1001 (1986) (striking down the feminist anti-pornography ordinance drafted by Catharine MacKinnon and Andrea Dworkin). The Supreme Court held laws against flagburning unconstitutional inTexas v. Johnson, 491 U.S. 397 (1989). For a decision upholding limited restrictions on abortion-clinic demonstrations, see Madsen v. Women's Health Ctr., 114 S. Ct. 2516 (1994). In several cases, the Supreme Court has held that states may not prohibit the media from publishing the names of sexual assault victims. See, e.g.,Florida Star v. B.J.F., 491 U.S. 524 (1989), discussed below. For a decision on tobacco advertising, see Penn Advertising v. Mayor, 63 F.3d 1318 (4th Cir. 1995) (upholding Baltimore ordinance banning most outdoor advertising of cigarettes),  vacated and remanded,  116 S. Ct. 2575 (1996), aff'd on reconsideration,  101 F.3d 332 (4th Cir. 1996),  cert. denied,  117 S. Ct. 1569 (1997). Some recent developments on entertainment violence are described in Lawrie Mifflin,  Deal on Making Ratings for TV Specify Content,  NEW YORK TIMES, July 10, 1997, at A1, col. 1. This summer, in National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998), the Supreme Court rejected a First Amendment challenge to a law requiring the NEA to take account of "general standards of decency" in awarding grants to artists. In Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), the Supreme Court struck down a federal law regulating indecency on the Internet. back
• It is important to note that those who support or oppose regulation often vary from one issue to another. Thus conservatives often support prohibitions on flagburning, while liberals oppose them; to a large extent, these positions are reversed on the regulation of cigarette advertising and anti-abortion demonstrations. back
• See  Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (Harlan, J.) (observing that an absolutist reading of the First Amendment "cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like"). back
• I trace the history of the American conception of freedom of speech in  Righting the Balance, supra  note *, Part I. back
• For the common-law understanding of liberty of the press, see 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *151-53 (St. George Tucker ed., 1803 & photo. reprint 1969). The civic republican approach is best represented by JOHN TRENCHARD & THOMAS GORDON, CATO'S LETTERS (Ronald Hamowy ed., 1995) (London 6th ed. 1755) [hereinafter CATO'S LETTERS]. back
• A classic statement of the natural rights view appears in this passage by the Jeffersonian Republican jurist St. George Tucker: Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name. St. George Tucker,  Of the Right of Conscience; and of the Freedom of Speech and of the Press,   in  1 BLACKSTONE,  supra note 8, app. G, at 11. back
• For a valuable account of this transformation, see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992). back
• See  ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH (1920); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). For excellent accounts of the development of modern First Amendment jurisprudence, see MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM (1991); David M. Rabban,  The Emergence of Modern First Amendment Doctrine,  50 UNIVERSITY OF CHICAGO LAW REVIEW 1205 (1983); David M. Rabban,  Free Speech in Progressive Social Thought,  74 TEXAS LAW REVIEW 951 (1996). back
• See, e.g.,  Konigsberg v. State Bar, 366 U.S. 36, 60-62, 74-75 (1961) (Black, J., dissenting). back
• For some contemporary works in this tradition, see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974); JOHN RAWLS, ATHEORY OF JUSTICE (1971). back
• On liberty as self-determination, see JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING bk. II, ch. 21 (Peter H. Nidditch ed., 1975) (4th ed. 1700); IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS *446-47 (Lewis W. Beck trans, 2d ed., 1990); IMMANUEL KANT, THE METAPHYSICS OF MORALS *213-14 (Mary Gregor trans., 1991); HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT §§ 5-7 (Allen W. Wood ed., H.B. Nisbet trans., 1991) [hereinafter HEGEL, PHILOSOPHY OF RIGHT]. back
• In order to avoid the awkwardness of "his or her," I shall alternate between masculine and feminine generic pronouns. back
• See, e.g.,  CATO'S LETTERS,  supra  note 8, No. 62 (treating freedom of thought and speech as aspects of natural liberty). back
• RESTATEMENT (SECOND) OF TORTS §§ 18-19 (1965). back
• ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-27 (1960). back
• Id.  at 24-25. back
• See  JOHN MILTON, AREOPAGITICA,  in  AREOPAGITICA AND OF EDUCATION (George H. Sabine ed., 1951) (1644); JOHN STUART MILL, ON LIBERTY ch. 2 (David Spitz ed., 1975) (1859). back
• Susan H. Williams,  A Feminist Theory of Truth  (forthcoming). back
• On this approach, see JEREMY WALDRON,  Rights in Conflict, in  LIBERAL RIGHTS 203 (1993). back
• See  Palko v. Connecticut, 302 U.S. 319, 327 (1937) (observing that freedom of speech and thought "is the matrix, the indispensable condition, of nearly every other form of freedom"). back
• New York Times v. Sullivan, 376 U.S. 254 (1964). back
• Florida Star v. B.J.F., 491 U.S. 524 (1989). back
• Id.  at 533-34, 537-39. back
• A more difficult problem would be presented in contexts where a substantial public interest would be served by publication, such as reporting public proceedings in a criminal trial.  See, e.g.,  Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975). back
• The literature on hate speech is vast. For some collections of major writings, see HENRY LOUIS GATES ET AL., SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES (1994); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT (1993); HATE SPEECH AND THE CONSTITUTION (Steven J. Heyman ed., 1996). On the history of the issue, see SAMUEL WALKER, HATE SPEECH: THE HISTORY OF AN AMERICAN CONTROVERSY (1994). back
• For a discussion of recognition in Hobbes, Locke, and other early modern natural rights theorists, see Steven J. Heyman,  Hate Speech and the Theory of Free Expression,   in  HATE SPEECH AND THE CONSTITUTION,  supra  note 28, at xli-xlii, xlvii-xlix [hereinafter Heyman,  Hate Speech ]. The concept of recognition and its relationship with right are more fully developed in later works, especially those of Fichte and Hegel.  See, e.g.,  J.G. FICHTE, SCIENCE OF RIGHTS (A.E. Kroeger trans., 1889) (1796); HEGEL, PHILOSOPHY OF RIGHT,  supra  note 14, §§ 36, 57, 71, 84-85, 95, 331; G.W.F. HEGEL, PHENOMENOLOGY OF SPIRIT §§ 178-96 (A.V. Miller trans., 1977) (5th ed., J. Hoffmeister ed., 1952).  See   generally  AXEL HONNETH, THE STRUGGLE FOR RECOGNITION (1995); ROBERT R. WILLIAMS, RECOGNITION (1992). For an excellent discussion of recognition and its relationship to contemporary controversies on campus, see Charles Taylor,  The Politics of Recognition,  in MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 25-73 (Amy Guttmann ed., Princeton University Press, 1992). back
• In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Supreme Court ruled that the First Amendment did not protect "insulting or 'fighting' words," which it defined as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." I defend a limited version of theChaplinskydoctrine in  Righting the Balance, supra  note *, Part IV.A back
• A 1989 incident at Arizona State University provides a dramatic example of all of these offenses. A fight started between a black student, Toby Wright, and a white fraternity member, Sean Hedgecock, after Hedgecock allegedly said, "Fuck you, nigger." Two dozen fraternity members then emerged from their house and surrounded Wright and two other blacks, chanting racial slurs. The fight was broken up by police, who alleged that Hedgecock continued to shout epithets and threatened to "get those niggers and kill them." Later that night, Hedgecock saw two other black students and shouted, "Those are the niggers! They're back!" Several hundred people then flooded out of nearby fraternity houses and surrounded the blacks, watching while a group of white fraternity members beat them up. The incident is recounted in Jon Wiener, Words That Wound: Free Speech for Campus Bigots?,  250 THE NATION 272 (Feb. 26, 1990). back
• Of course, this is a central theme of the critical-race-theory literature on hate speech.  See, e.g., MATSUDA ET AL.,  supra note 28;  see also  CATHARINE A. MACKINNON, ONLY WORDS (1993) (arguing that hate speech, pornography, and racial and sexual harassment constitute denials of equality. On the right to equality within the rights-based theory, see Heyman,  Hate Speech , supra  note 29, at lviii-lix. back
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). back
• See  Heyman,  Hate Speech,   supra  note 29, at xliii-xlvi. back
• For the Skokie litigation, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.),  cert. denied,  439 U.S. 916 (1978); Village of Skokie v. National Socialist Party of America, 373 N.E.2d 21 (Ill. 1978). The controversy generated a rich and extensive literature. See, e.g.,  LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA (1986); DONALD DOWNS, NAZIS IN SKOKIE: FREEDOM, COMMUNITY, AND THE FIRST AMENDMENT (1985); ARYEH NEIER: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF FREEDOM (1979); Raphael Cohen-Almagor,  Harm Principle, Offense Principle, and the Skokie Affair, 41 POLITICAL STUDIES 453 (1993),  reprinted in  HATE SPEECH AND THE CONSTITUTION,  supra  note 28, at 277-94; Daniel A. Farber,  Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Significance of  Cohen v. California, 1980 DUKE LAW JOURNAL 283. back
• MEIKLEJOHN,  supra  note 18, at 69-70. back
• For the latter argument, see BOLLINGER,  supra  note 35. back
• One useful way to explore this question is to ask whether we believe that it is actually desirable that such views be publicly expressed, in the sense that the values underlying free speech and other rights are best served if those who hold such views openly express them, rather than keeping those views to themselves. Meiklejohn, for example, argues that if political views are "responsibly entertained by anyone, we, the voters, need to hear them"; such views "must be expressed, not because they are valid, but because they are relevant." MEIKLEJOHN,  supra  note 18, at 28. Mill discusses the search for truth in similar terms. MILL, supra  note 20, at 43-44. It seems highly doubtful, however, that we would apply this position to public hate speech. Instead, we would be more likely to say that such speech is so inconsistent with the respect owed to others and with the requirements of reasonable discussion that it is improper to introduce it into public discourse, regardless of whether there is a right to do so. We would regard the disappearance of hate speech as a gain rather than a loss for public discussion. If this is true, then it is clear that the value of public hate speech does not outweigh the injuries it causes. back
• An example is provided by the facts of Brandenburg v. Ohio, 395 U.S. 444 (1969), in which a dozen Klansmen gathered on private party to burn crosses and make racist and anti-Semitic speeches. back
• For a similar position, see Mari J. Matsuda,  Public Response to Racist Speech: Considering the Victim's Story,   in  MATSUDA ET AL.,  supra  note 28, at 40-41. back
• Steven J. Heyman

Freedom of expression in the Digital Age: Internet Censorship

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Freedom of Expression

FREEDOM OF EXPRESSION

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

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

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

THE FIRST AMENDMENT IGNORED

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

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

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

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

THE SUPREME COURT AND THE FIRST AMENDMENT

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

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

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

WHAT DOES “PROTECTED SPEECH” INCLUDE?

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

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

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

FREE SPEECH FOR HATEMONGERS?

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

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

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

SPEECH & NATIONAL SECURITY

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

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

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

UNPROTECTED EXPRESSION

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

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

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

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

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

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

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

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

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

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

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Freedom of expression and social coercion.

Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions on free expression and offers an account of how it is appropriate to respond to such f...

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On freedom of expression and campus speech codes.

The statement that follows was approved by the Association’s Committee A on Academic Freedom and Tenure in June 1992 and adopted by the Association’s Council in November 1994.

Freedom of thought and expression is essential to any institution of higher learning. Universities and colleges exist not only to transmit knowledge. Equally, they interpret, explore, and expand that knowledge by testing the old and proposing the new. This mission guides learning outside the classroom quite as much as in class, and often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.

On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.

Universities and colleges are also communities, often of a residential character. Most campuses have recently sought to become more diverse, and more reflective of the larger community,by attracting students, faculty, and staff from groups that were historically excluded or underrepresented. Such gains as they have made are recent, modest, and tenuous. The campus climate can profoundly affect an institution’s continued diversity. Hostility or intolerance to persons who differ from the majority (especially if seemingly condoned by the institution) may undermine the confidence of new members of the community. Civility is always fragile and can easily be destroyed.

In response to verbal assaults and use of hateful language, some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic, or ethnically demeaning speech, along with conduct or behavior that harasses. Several reasons are offered in support of banning such expression. Individuals and groups that have been victims of such expression feel an understandable outrage. They claim that the academic progress of minority and majority alike may suffer if fears, tensions, and conflicts spawned by slurs and insults create an environment inimical to learning.

These arguments, grounded in the need to foster an atmosphere respectful of and welcoming to all persons, strike a deeply responsive chord in the academy. But, while we can acknowledge both the weight of these concerns and the thoughtfulness of those persuaded of the need for regulation, rules that ban or punish speech based upon its content cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.

Some may seek to defend a distinction between the regulation of the content of speech and the regulation of the manner (or style) of speech. We find this distinction untenable in practice because offensive style or opprobrious phrases may in fact have been chosen precisely for their expressive power. As the United States Supreme Court has said in the course of rejecting criminal sanctions for offensive words:

[W]ords are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.

The line between substance and style is thus too uncertain to sustain the pressure that will inevitably be brought to bear upon disciplinary rules that attempt to regulate speech.

Proponents of speech codes sometimes reply that the value of emotive language of this type is of such a low order that, on balance, suppression is justified by the harm suffered by those who are directly affected, and by the general damage done to the learning environment. Yet a college or university sets a perilous course if it seeks to differentiate between high-value and low-value speech, or to choose which groups are to be protected by curbing the speech of others. A speech code unavoidably implies an institutional competence to distinguish permissible expression of hateful thought from what is proscribed as thoughtless hate.

Institutions would also have to justify shielding some, but not other, targets of offensive language—proscribing uncomplimentary references to sexual but not to political preference, to religious but not to philosophical creed, or perhaps even to some but not to other religious affiliations. Starting down this path creates an even greater risk that groups not originally protected may later demand similar solicitude—demands the institution that began the process of banning some speech is ill equipped to resist.

Distinctions of this type are neither practicable nor principled; their very fragility underscores why institutions devoted to freedom of thought and expression ought not adopt an institutionalized coercion of silence.

Moreover, banning speech often avoids consideration of means more compatible with the mission of an academic institution by which to deal with incivility, intolerance, offensive speech, and harassing behavior:

• Institutions should adopt and invoke a range of measures that penalize conduct and behavior, rather than speech—such as rules against defacing property, physical intimidation or harassment, or disruption of campus activities. All members of the campus community should be made aware of such rules, and administrators should be ready to use them in preference to speech-directed sanctions.
• Colleges and universities should stress the means they use best—to educate—including the development of courses and other curricular and co-curricular experiences designed to increase student understanding and to deter offensive or intolerant speech or conduct. These institutions should, of course, be free (indeed encouraged) to condemn manifestations of intolerance and discrimination, whether physical or verbal.
• The governing board and the administration have a special duty not only to set an outstanding example of tolerance, but also to challenge boldly and condemn immediately serious breaches of civility.
• Members of the faculty, too, have a major role; their voices may be critical in condemning intolerance, and their actions may set examples for understanding, making clear to their students that civility and tolerance are hallmarks of educated men and women.
• Student-personnel administrators have in some ways the most demanding role of all, for hate speech occurs most often in dormitories, locker rooms, cafeterias, and student centers. Persons who guide this part of campus life should set high standards of their own for tolerance and should make unmistakably clear the harm that uncivil or intolerant speech inflicts.

To some persons who support speech codes, measures like these—relying as they do on suasion rather than sanctions—may seem inadequate. But freedom of expression requires toleration of “ideas we hate,” as Justice Holmes put it. The underlying principle does not change because the demand is to silence a hateful speaker, or because it comes from within the academy. Free speech is not simply an aspect of the educational enterprise to be weighed against other desirable ends. It is the very precondition of the academic enterprise itself.

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Freedom of expression toolkit: a guide for students

UNESCO is the United Nations agency with the specialized mandate to promote freedom of expression and its corollary freedom of the press and freedom of information. Over the decades, UNESCO has labored to promote these fundamental human rights across the globe, amongst practicing media professionals, policy-makers, politicians, governments, non-governmental organizations, academia, and more. The Freedom of Expression Toolkit: A Guide to the Concepts and Issues is a continuation of this ongoing effort.

Everyone should have all the necessary tools and mechanism to allow the free flow of information. Much has been written about freedom of expression, indeed it is one of the most debated concepts and issues of our times. However, few such publications are written with youth as the main target readers, especially for young women and men still in high schools and pre-university level. This Toolkit is one such tool targeted at high schools and pre-university students. Young women and men must be empowered and literate in the issues and concepts of freedom of expression in order to become a discerning citizen in a democracy.

• Why does freedom of expression matter?
• When is freedom of expression at risk?
• What are the conditions needed for freedom of expression to flourish?
• What are the special roles of journalist in freedom of expression?
• What about freedom of expression online?
• What can we do?
• What are the limitations?

These are some of the questions the Toolkit tries to answer through an easy and engaging manner. They are arranged into seven "tool boxes", each with a different focus. The first toolbox discusses about the concept and explains the importance of freedom of expression. The second toolbox highlights the issues that threaten freedom of expression including controlled media, intimidations, and obstacles in access to information, restrictive laws and regulations. In the third toolbox, readers are sensitized to the conditions needed for freedom of expression to flourish such as the rule of law and having free, independent and pluralistic media in addition to an active civil society.

A special section is devoted to addressing the role of press and of journalists in freedom of expression in the fourth toolbox. In addition to traditional media such as print, radio and broadcasting, the fifth toolbox also brings in discussion on the recent development in social media and networking especially their uses in freedom of expression. The sixth part of the Toolkit is designed to enable readers to bring theory into practices through a wide variety of exercises, projects, and thought-provoking questions including activities such as celebrating the annual World Press Freedom Day or setting up Media Monitoring site. Lastly, the final toolbox discusses about the dilemmas of freedom of expression and its limitations. In addition to the seven toolboxes, there is a “bonus material” section based on the case study of the fictional country called Zangara which is an amalgamation of real world events allowing readers to further explore the concepts and issues in greater depth.

#FreedomOfExpression

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Publication Annual Report 2023 UNESCO Juba Office 15 April 2024

Student Engagement and Well-Being

Aloha Yellow Jackets,

I write this as I endure the consequences of a high pollen count yet revel in the joy of spring-time weather. It hardly seems possible that the end of another academic year is just around the corner. I am sad that this will be our final newsletter for this academic year. 

This month, we have the chance to learn from the voices of our graduate student leaders as they share their reflections on the rights and responsibilities associated with freedom of expression and inquiry for them.

As always, all videos on freedom of expression and a wide range of other resources on this topic for students can be found on our website .  Note that we have added additional information about Georgia state laws that impact free speech.

On Combatting Discrimination & Harassment

One purpose of higher education is to promote personal development by bringing together a diverse array of individuals in terms of identity, background, experiences, political ideologies, and viewpoints. Georgia Tech has continued to champion the rights of every student to freely express their ideas, opinions, and perspectives. At the same time, Georgia Tech is also committed to having an environment free from discrimination, including harassment. As such, the Institute carefully reviews each complaint regarding alleged discrimination and harassment to determine if a policy violation occurred.  

When speech crosses the line into harassment, Georgia Tech can hold students accountable under the Student Code of Conduct . However, even if no laws or policies are broken, we aspire to create a community that promotes care and compassion.  For example, when hateful language is also dehumanizing, it can erode psychological safety for some members of our community.

Our office has received some questions about when free speech goes too far, and I wanted to provide some resources. Many acts of expression that one might consider to be hate speech will be protected under laws that guarantee free speech rights, but not all of them. Consider the following:

• In accordance with our Equal Opportunity, Nondiscrimination, and Anti-Harassment Policy , “Georgia Tech prohibits discrimination, including discriminatory harassment, on the basis of race, ethnicity, ancestry, color, religion, sex (including pregnancy), sexual orientation, gender identity, gender expression, national origin, age, disability, genetics, or veteran status in its programs, activities, employment, and admissions.” 
• Last November, the US Department of Education issued a “ Dear Colleague Letter ” to institutions of higher education reminding them of the responsibility under Title VI of the Civil Rights Act of 1964 to protect all students, including students who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian, from discrimination or hostile environment based on race, color, or national origin, including shared ancestry or ethnic characteristics.
• HB30 is a new law that went into effect in the State of Georgia in January 2024; it provides a definition of antisemitism which shall be used in determining whether alleged discriminatory conduct – including hate crime – is antisemitic.   

As always, if you believe you or another student has been the target of harassment or discrimination, please reach out to the Office of the  Dean of Students  or by filing an incident report with the  Office of Student Integrity .

Debate and dialogue will always be encouraged and welcomed at Georgia Tech. But I ask that every individual at Georgia Tech do their part to ensure that such expressive activity does not move into the realm of being divisive or contradict our espoused values as an Institute. We each play a part in helping this campus be the kind of community we want it to be.

On Granting Grace

Netflix’s AI recently proffered “ Suits ” based on my past viewing habits.  Ever on the lookout for an entertaining TV show to binge, I happily obliged and have been drawn in by the relationships, ethical dilemmas, and lessons embedded throughout the series. The end of the year feels like a moment of reckoning for many Georgia Tech students as you submit your final assignments and take your final exams. Next comes the anxiety about your grades - and then either joy or disappointment when they are released. This made me think of the show and what we might apply from it in our own lives.

First, give everything that you have, and then have faith in yourself: you’ve done the best that you can. Even if you faced unexpected challenges, know that you’ve given all that you could under the circumstances. Second, extend grace to yourself; you can’t function at your best without nurturing all eight dimensions of wellness , and you can’t do any of this alone. This includes taking time to relax with and rely on whoever you consider your “family,” as well as reaching out for assistance from the myriad of resources available at Georgia Tech . Finally, know that you are more than just your grades; your transcript (and degree) is only one chapter in the novel of who you are as a complete human being.

To our Spring 2024 graduates – congratulations!!!!! To all returning Yellow Jackets: have a terrific summer, and we look forward to welcoming you back in Fall 2024!

• More notes from the VP

Commitment to Freedom of Expression

Davidson’s Commitment to Freedom of Expression

We believe in free speech, free expression, and academic freedom. We believe in a robust exchange of ideas because we believe in an ethical pursuit of truth. Our official documents have outlined our commitment and, indeed, our obligation to uphold those beliefs.

The preamble of Davidson College’s constitution expresses our mission:  

Davidson dedicates itself to the quest for truth and encourages teachers and students to explore the whole of reality, whether physical or spiritual, with unlimited employment of their intellectual  powers… Davidson… intends to teach all students to think clearly, to make relevant judgments, to discriminate among values, and to communicate freely with others in the realm of ideas. 

Davidson has deepened our commitment to that ideal.  

As a college that welcomes students, faculty, and staff from a variety of nationalities, ethnic groups, and traditions, Davidson values diversity, recognizing the dignity of every person.  

Our college Constitution, the touchstone for our mission, gives guidance and protections for students and faculty. Article XII of Davidson College’s constitution is dedicated to Students’  Rights and Responsibilities and declares its commitments to free speech rights of students, setting forth specific rights of students and student organizations. Additionally, Article X addresses faculty rights of academic freedom and tenure, employment, and evaluation. Both  provisions formally bind Davidson to a fundamental obligation for free speech and free communication.

Our goal is to ensure these principles live, breathe, and are personified by every member of the college community. That’s not possible if some groups are intentionally or unintentionally excluded from full participation. Dissenting voices cannot and should not be censored.

True free speech, free expression, and academic freedom are not generational or preferential. In pledging to honor these ideals, we must recognize that this task can be arduous and precarious. Davidson has a professed commitment to free inquiry and to the inclusion of diverse persons and communities. We admit that these obligations have historically been more aspirational than actual. Acknowledging the intentional and unintentional exclusion of ideas and identities is both honest and constructive. Individuals and groups have been marginalized and their voices muted based on race, ethnicity, sexuality , gender , disability , class , ideology, citizenship , and religious or political affiliation.

Davidson College guarantees all members of the college community the broadest possible latitude to speak, write, listen, challenge, and learn, except when that expression violates the law, falsely defames a specific individual, constitutes a genuine threat or harassment, unjustifiably invades substantial privacy or confidentiality interests or is otherwise directly incompatible with the functioning of the College.

Davidson College’s fundamental commitment is to the principle that debate, discussion and deliberation may not be suppressed because the ideas put forth are thought by some or even most members of the college community to be offensive or unwise. We have a solemn responsibility to promote the lively and fearless freedom of debate and deliberation and will also protect that freedom when others attempt to restrict it. It is not the proper role of the College to attempt to shield individuals from ideas and opinions they find uncomforting, disagreeable, or offensive. The role of the college is to sustain an environment in which all students can freely learn. 

Davidson College greatly values civility and mutual respect, but these can never be used to justify closing off debate. In the spirit of a robust pledge to free speech and free expression, we concede that individuals invited to speak on campus may be controversial and contested. We should not obstruct or otherwise interfere with speakers who are invited to express their views on campus. For the sake of expressing as well as disputing ideas, we do not seek to censor speech or discourage protest which might encourage critical thinking. Self-silencing obstructs the pursuit to discover truth. Indeed, fostering the ability of members of the college community to engage in such debate and deliberation in an effective and responsible manner is an essential part of Davidson College’s educational mission.

With this statement of freedom of expression, Davidson College acknowledges the need to build and nurture trust and empathy. With a generosity of spirit and forbearance, we aspire to seek common ground. To work toward these goals, we must have a unique solution that reflects and draws strength from our shared core values.

We do not expect perfection. We demand excellence. We expect to be better today than yesterday, better tomorrow still. The best way to ensure progression is to recognize that true inclusion and true free speech are interdependent. They must continue to be so.  

This document borrows from and includes language from the  Report of the Committee on Freedom of Expression of the University of Chicago , the  Davidson College Statement of Purpose  and the  Davidson College Constitution .

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