limits of free speech essay

• History Classics
• Your Profile
• Find History on Facebook (Opens in a new window)
• Find History on Twitter (Opens in a new window)
• Find History on YouTube (Opens in a new window)
• Find History on Instagram (Opens in a new window)
• Find History on TikTok (Opens in a new window)
• This Day In History
• History Podcasts
• History Vault

Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

Sign up for Inside History

Get HISTORY’s most fascinating stories delivered to your inbox three times a week.

By submitting your information, you agree to receive emails from HISTORY and A+E Networks. You can opt out at any time. You must be 16 years or older and a resident of the United States.

More details : Privacy Notice | Terms of Use | Contact Us

Explore the Constitution

• The Constitution
• Read the Full Text

Dive Deeper

Constitution 101 course.

• The Drafting Table
• Supreme Court Cases Library
• Founders' Library
• Constitutional Rights: Origins & Travels

Start your constitutional learning journey

• News & Debate Overview

Constitution Daily Blog

• America's Town Hall Programs
• Special Projects

Media Library

America’s Town Hall

Watch videos of recent programs.

• Education Overview

Constitution 101 Curriculum

• Classroom Resources by Topic
• Classroom Resources Library
• Live Online Events
• Professional Learning Opportunities
• Constitution Day Resources

Explore our new 15-unit high school curriculum.

• Explore the Museum
• Plan Your Visit
• Exhibits & Programs
• Field Trips & Group Visits
• Host Your Event
• Buy Tickets

New exhibit

The first amendment, schenck v. united states: defining the limits of free speech.

November 2, 2015 | by Joshua Waimberg

Note:  Landmark Cases , a C-SPAN series on historic Supreme Court decisions—produced in cooperation with the National Constitution Center—continues on Monday, Nov. 2 at   9pm ET. This week’s show features  Schenck v. United States .

In a case that would define the limits of the First Amendment’s right to free speech , the Supreme Court decided the early 20 th -century case of Schenck v. United States .

The case began, as many do, with an act of Congress. Shortly after the United States entered into World War I, Congress passed the Espionage Act of 1917. It was passed with the goals of prohibiting interference with military operations or recruitment, preventing insubordination in the military, and preventing the support of hostile enemies during wartime.

At the time, Charles Schenck was an important Philadelphia socialist. He was the general secretary of the Socialist Party of America, and was opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section One of the 13 th Amendment , which outlawed slavery and involuntary servitude. Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet’s other side, titled “Assert Your Rights,” told conscripts that, “[i]f you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and Elizabeth Baer, another member of the Socialist Party who was also charged, were both convicted following a jury trial and sentenced to six months in prison.

Schenck and Baer appealed their convictions to the Supreme Court. They argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the First Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the First Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s First Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, even though the Act only applied to successful efforts to obstruct the draft, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

When it came to the Act’s alleged violation of the First Amendment, the Court found that context was the most important factor. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech. Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

It was only a year later that Holmes attempted to redefine the standard. In the 1919 case of Abrams v. United States , the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio , a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

The Espionage Act of 1917 lives on as well. Since the decision in Schenck v. United States , those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Chelsea Manning and Edward Snowden have also been charged under the Act.

Joshua Waimberg is a legal fellow at the National Constitution Center.

More from the National Constitution Center

Constitution 101

Explore our new 15-unit core curriculum with educational videos, primary texts, and more.

Search and browse videos, podcasts, and blog posts on constitutional topics.

Founders’ Library

Discover primary texts and historical documents that span American history and have shaped the American constitutional tradition.

Modal title

Modal body text goes here.

Share with Students

Home — Essay Samples — Social Issues — Human Rights — Freedom of Speech

Argumentative Essays on Freedom of Speech

Freedom of speech essay topic examples, argumentative essays.

Argumentative essays on freedom of speech require you to take a stance on a specific aspect of this topic and provide evidence to support your viewpoint. Consider these topic examples:

• 1. Argue for the importance of protecting hate speech as a form of free expression, emphasizing the principles of free speech and the potential consequences of limiting it.
• 2. Debate the ethical implications of social media platforms censoring or moderating content, exploring the balance between maintaining a safe online environment and upholding free speech rights.

Example Introduction Paragraph for an Argumentative Freedom of Speech Essay: Freedom of speech is a cornerstone of democratic societies, but it often challenges our notions of what should be protected. In this argumentative essay, we will examine the importance of safeguarding hate speech as a form of free expression, exploring the principles of free speech and the potential ramifications of its restriction.

Example Conclusion Paragraph for an Argumentative Freedom of Speech Essay: In conclusion, the argument for protecting hate speech within the bounds of free expression highlights the enduring principles of democracy and free speech. As we navigate these complex debates, we must remain committed to preserving the foundations of our democratic society.

Compare and Contrast Essays

Compare and contrast essays on freedom of speech involve analyzing the similarities and differences between various aspects of free speech laws, practices, or the historical development of free speech rights in different countries. Consider these topics:

• 1. Compare and contrast the approach to freedom of speech in the United States and European Union, examining the legal frameworks, historical context, and key differences in their protection of free expression.
• 2. Analyze the evolution of freedom of speech in the digital age, comparing the challenges and opportunities presented by online platforms and the traditional forms of free expression.

Example Introduction Paragraph for a Compare and Contrast Freedom of Speech Essay: Freedom of speech varies across different countries and contexts, raising questions about the boundaries of this fundamental right. In this compare and contrast essay, we will explore the approaches to freedom of speech in the United States and the European Union, shedding light on their legal frameworks, historical backgrounds, and notable distinctions.

Example Conclusion Paragraph for a Compare and Contrast Freedom of Speech Essay: In conclusion, the comparison and contrast of freedom of speech in the United States and the European Union reveal the multifaceted nature of this fundamental right. As we examine these diverse perspectives, we gain a deeper appreciation for the complexities surrounding free expression in our globalized world.

Descriptive Essays

Descriptive essays on freedom of speech allow you to provide detailed accounts and analysis of specific instances, historical events, or contemporary debates related to free speech. Here are some topic ideas:

• 1. Describe a landmark Supreme Court case related to freedom of speech, such as the "Tinker v. Des Moines Independent Community School District" case, and its significance in shaping free speech rights for students.
• 2. Paint a vivid picture of a recent protest or demonstration where freedom of speech played a central role, discussing the motivations of the protesters, the public's response, and the outcomes of the event.

Example Introduction Paragraph for a Descriptive Freedom of Speech Essay: Freedom of speech is often tested and defined in the courtroom and in the streets. In this descriptive essay, we will delve into the landmark Supreme Court case "Tinker v. Des Moines Independent Community School District" and its profound impact on the free speech rights of students within the educational system.

Example Conclusion Paragraph for a Descriptive Freedom of Speech Essay: In conclusion, the descriptive exploration of the "Tinker" case illustrates the enduring struggle to balance students' free speech rights with the need for a productive educational environment. As we reflect on this historical event, we are reminded of the ongoing challenges in preserving and defining freedom of speech in schools.

Persuasive Essays

Persuasive essays on freedom of speech involve advocating for specific actions, policies, or changes related to the protection or limitations of free speech rights. Consider these persuasive topics:

• 1. Persuade your audience of the importance of enacting legislation to combat "cancel culture" and protect individuals' right to express unpopular opinions without fear of social or professional consequences.
• 2. Advocate for greater transparency and accountability in social media content moderation practices, highlighting the potential impact on free speech and the public's right to access diverse information.

Example Introduction Paragraph for a Persuasive Freedom of Speech Essay: The boundaries of free speech are continually tested in our rapidly changing society. In this persuasive essay, I will make a compelling case for the necessity of legislation to combat "cancel culture" and preserve individuals' right to express dissenting views without facing severe social or professional repercussions.

Example Conclusion Paragraph for a Persuasive Freedom of Speech Essay: In conclusion, the persuasive argument for legislation against "cancel culture" underscores the importance of safeguarding free speech in the face of societal pressures. As we advocate for change, we contribute to the preservation of a diverse and inclusive marketplace of ideas.

Narrative Essays

Narrative essays on freedom of speech allow you to share personal stories, experiences, or observations related to free speech, your encounters with debates or controversies, or the impact of free expression on your life. Explore these narrative essay topics:

• 1. Narrate a personal experience where you exercised your right to free speech, detailing the circumstances, motivations, and reactions from others, and reflecting on the significance of your actions.
• 2. Share a story of your involvement in a community or online discussion where freedom of speech played a central role, emphasizing the challenges and rewards of engaging in open dialogue.

Example Introduction Paragraph for a Narrative Freedom of Speech Essay: Freedom of speech is not just an abstract concept; it is a lived experience. In this narrative essay, I will take you through a personal journey where I exercised my right to free speech, recounting the circumstances, motivations, and the impact of my actions on those around me.

Example Conclusion Paragraph for a Narrative Freedom of Speech Essay: In conclusion, the narrative of my personal experience with free speech highlights the transformative power of open dialogue and individual expression. As we share our stories, we contribute to the rich tapestry of voices that define our commitment to this essential democratic principle.

Turner V Driver Case Analysis

Eric foner's analysis of american freedom, made-to-order essay as fast as you need it.

Each essay is customized to cater to your unique preferences

+ experts online

Books Should not Be Banned

Rights to freedom of speech and expression, the role of the freedom of speech, the abuse of the freedom of speech and freedom of press by the media in the united states, let us write you an essay from scratch.

• 450+ experts on 30 subjects ready to help
• Custom essay delivered in as few as 3 hours

The Meaning of The Freedom of Speech

Protection of the freedom of speech and the freedom of press in usa, the significance of putting limitation and prohibition to the expression of personal opinion, controversial points of free speech, get a personalized essay in under 3 hours.

Expert-written essays crafted with your exact needs in mind

A Study of The True Meaning of Free Speech in Today's Society

The misconception of hate speech and its connection with the freedom of speech, the link between freedom of speech and hate speech, the issue of free speech and hate speech on campus, freedom of speech and social media, the violation of freedom of speech in north korea, freedom of speech and expression, freedom of speech and censorship in social media, freedom of speech at college campuses, freedom of speech can cause harm onto others, my case for freedom of speech, the significance of the expression of personal opinion and governance, the results of restrictions of speech freedom and expression at college campuses, pros and cons of internet censorship, an examination of the first amendment: the freedom of speech, freedom of speech: challenges with defining and regulation, the main aspects of the right to free speech, a research on the censorship of popular music, the expression of personal opinion in universities as a solution to contentious issues, the issues of internet censorship in australia.

Freedom of speech is a fundamental human right that encompasses the liberty to express thoughts, opinions, beliefs, and ideas without fear of censorship, reprisal, or governmental interference.

1. The right to seek information and ideas; 2. The right to receive information and ideas; 3. The right to impart information and ideas.

The concept of freedom of speech has deep historical roots, originating from ancient civilizations and evolving through various historical contexts. The ancient Greeks, particularly in Athens, valued free expression and public debate, considering it essential for democratic governance. Similarly, the Roman Republic allowed citizens the freedom to express their opinions in political matters. The modern understanding of freedom of speech emerged during the Age of Enlightenment in the 17th and 18th centuries. Prominent thinkers like John Locke and Voltaire advocated for the right to express ideas without censorship or persecution. Their ideas influenced the development of democratic societies and the recognition of freedom of speech as a fundamental human right. The historical context of freedom of speech also includes pivotal moments, such as the American Revolution and the French Revolution. These revolutions challenged the existing oppressive regimes and led to the inclusion of free speech protections in their respective declarations of rights. Since then, the concept of freedom of speech has been enshrined in numerous international human rights documents, such as the Universal Declaration of Human Rights and the First Amendment to the United States Constitution.

The freedom of speech is a fundamental right protected by the First Amendment of the United States Constitution. It guarantees individuals the right to express their opinions, beliefs, and ideas without fear of government censorship or retaliation. The historical context of freedom of speech in the US can be traced back to the country's founding. The American Revolution and the subsequent establishment of the Constitution were driven by a desire for individual liberties, including the right to freely express oneself. Over the years, the interpretation and application of freedom of speech in the US have been shaped by landmark court cases. For instance, in the 1960s, the Supreme Court ruled in favor of protecting political and symbolic speech, even if it was controversial or dissenting. This period also saw the rise of the free speech movement, which advocated for greater rights on college campuses. However, the freedom of speech in the US is not absolute. Certain types of speech, such as obscenity, defamation, incitement to violence, and hate speech, are subject to limitations and can be legally restricted.

Thomas Jefferson: As one of the Founding Fathers of the United States, Jefferson was a staunch advocate for freedom of speech. He believed that a free exchange of ideas was vital for a democratic society and emphasized its protection in the First Amendment. Voltaire: A French philosopher and writer, Voltaire championed the principles of free expression and tolerance. His writings challenged oppressive regimes and promoted the idea that individuals should have the right to speak their minds without fear of persecution. Martin Luther King Jr.: Known for his leadership in the American civil rights movement, King passionately defended free speech as a means to advocate for social justice. His powerful speeches and peaceful protests were instrumental in promoting equality and challenging systemic racism. John Stuart Mill: An influential philosopher and political economist, Mill articulated the concept of the "marketplace of ideas" and argued for unrestricted freedom of speech. He believed that through open and robust debate, society could discover the truth and prevent the suppression of minority viewpoints.

Public opinion on the freedom of speech varies widely, reflecting the diversity of perspectives within societies around the world. While many individuals staunchly uphold the value and importance of free speech as a fundamental human right, others harbor concerns and reservations regarding its boundaries and potential consequences. Additionally, cultural and societal factors significantly shape public opinion on freedom of speech. Different countries and communities may have distinct historical experiences, cultural norms, and legal frameworks that influence their perspectives. The balance between individual freedoms and collective well-being may vary across societies, leading to differing opinions on where the boundaries of free speech should lie. Technological advancements and the rise of social media platforms have further complicated public opinion on freedom of speech. The digital age has enabled individuals to express their views on a global scale, amplifying the impact and reach of their words. However, it has also highlighted concerns about online harassment, the spread of misinformation, and the potential for manipulation and abuse of free speech rights. As a result, debates emerge around the role of platforms in regulating speech and ensuring the responsible use of online communication tools.

1. Protection of democratic principles 2. Advancement of knowledge and progress 3. Promotion of individual autonomy 4. Protection of minority rights 5. Defense against tyranny

1. Harmful and hateful speech 2. Protection of vulnerable groups 3. Misinformation and propaganda 4. Privacy and dignity 5. Societal stability and public safety

1. The recognition of speech protection can be traced back to the signing of the Magna Carta in 1215, marking an early milestone in safeguarding the freedom of expression. 2. In 399 BC, the renowned Greek philosopher Socrates faced persecution for his advocacy of unrestricted speech, showcasing the historical roots of the ongoing struggle for free speech rights. 3. A significant majority, approximately 70% of Americans, believe in the importance of granting individuals the right to free speech, even if their words are deemed highly offensive or controversial. 4. A pivotal moment for student rights came in 1969 with the Supreme Court case Tinker v. Des Moines, which affirmed that students maintain their right to free speech even within the confines of school hours.

The topic of freedom of speech is of immense importance for writing an essay due to its fundamental role in society. Freedom of speech is a cornerstone of democracy, enabling individuals to express their opinions, ideas, and beliefs openly without fear of censorship or retribution. It serves as a catalyst for societal progress, allowing for the exchange of diverse perspectives, critical thinking, and the challenging of established norms. Exploring the concept of freedom of speech in an essay provides an opportunity to delve into its historical significance and the ongoing struggles for its protection. It allows for an examination of the complex balance between free expression and the limitations necessary to prevent harm or hate speech. Additionally, discussing the importance of freedom of speech facilitates a deeper understanding of its role in fostering social justice, political discourse, and the protection of minority voices. Moreover, the topic invites exploration of contemporary issues such as online censorship, fake news, and the challenges posed by the digital age. By analyzing case studies, legal frameworks, and international perspectives, an essay on freedom of speech can shed light on the ongoing debates, dilemmas, and potential solutions to ensure its preservation in an ever-evolving society.

1. Sullivan, K. M. (2010). Two concepts of freedom of speech. Harvard Law Review, 124(1), 143-177. (https://www.jstor.org/stable/20788316) 2. Van Mill, D. (2002). Freedom of speech. (https://plato.stanford.edu/ENTRIES/freedom-speech/) 3. Bogen, D. (1983). The origins of freedom of speech and press. Md. L. Rev., 42, 429. (https://heinonline.org/HOL/LandingPage?handle=hein.journals/mllr42&div=20&id=&page=) 4. Yong, C. (2011). Does freedom of speech include hate speech?. Res Publica, 17, 385-403. (https://link.springer.com/article/10.1007/s11158-011-9158-y) 5. McHugh, M. R. (2004). Historiography and freedom of speech: the case of Cremutius Cordus. In Free Speech in Classical Antiquity (pp. 391-408). Brill. (https://brill.com/display/book/edcoll/9789047405689/B9789047405689-s018.xml) 6. Milo, D. (2008). Defamation and freedom of speech. (https://academic.oup.com/book/2591) 7. Helwig, C. C. (1998). Children's conceptions of fair government and freedom of speech. Child Development, 69(2), 518-531. (https://srcd.onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-8624.1998.tb06205.x) 8. Cheung, A. S. (2011). Exercising freedom of speech behind the great firewall: A study of judges’ and lawyers’ blogs in China. Harvard International Law Journal Online. (https://harvardilj.org/wp-content/uploads/sites/15/2011/04/HILJ-Online_52_Cheung1.pdf) 9. Nieuwenhuis, A. (2000). Freedom of speech: USA vs Germany and Europe. Netherlands Quarterly of Human Rights, 18(2), 195-214. (https://journals.sagepub.com/doi/pdf/10.1177/092405190001800203)

Relevant topics

• Gun Control
• Death Penalty
• Police Brutality
• Human Trafficking
• Pro Choice (Abortion)
• Pro Life (Abortion)
• Animal Testing
• Illegal Immigration
• Gender Equality

By clicking “Check Writers’ Offers”, you agree to our terms of service and privacy policy . We’ll occasionally send you promo and account related email

No need to pay just yet!

Bibliography

We use cookies to personalyze your web-site experience. By continuing we’ll assume you board with our cookie policy .

• Instructions Followed To The Letter
• Deadlines Met At Every Stage
• Unique And Plagiarism Free

Jump to navigation

The Limits of Free Speech

Published: May 1, 2017

The First Amendment allows us to speak our mind and stand up for what we believe in. However, the limits on free speech are rooted in the principle that we’re not allowed to harm others to get what we want. That’s why we’re not allowed to use to speech for force, fraud, or defamation.

Discussion Questions 

• Why is it a good idea include close substitutes for speech in protections under the First Amendment?
• Are you allowed to advocate for the use of force in the abstract, as with the Marxist position for the forcible overthrow of the government? Is that different from calls for immediate force?
• While your intention may not be to harm others through free speech, what if someone feels threatened by it nonetheless?
• Why is fraud not allowed under freedom of speech?

The First Amendment guarantees freedom of speech. But does that mean we're allowed to say anything we want?

Well, not quite.

The limits on free speech come from the basic principle that you're not allowed to harm others to get what you want.

You can win in the marketplace, with better goods and lower prices, and even put your competition out of business, but you're not allowed to use

speech to threaten to hurt someone, either verbally or nonverbally.

And you're not allowed to deceive people to get what you want – that's called fraud. You'd be harming them because they're relying on false information.

Free speech means you can:

Proclaim your beliefs and passions,

argue your opinions,

and speak out against what you consider to be injustices.

As long as you don't defame or abuse people, OR advocate the immediate use of force

OR intentionally misrepresent the truth to people... or to those who they might deal with,

You have the freedom to share whatever is on your mind.

View the discussion thread.

• Connect with us

© 2024 by the Board of Trustees of Leland Stanford Junior University | Privacy Policy

1000-Word Philosophy: An Introductory Anthology

Philosophy, One Thousand Words at a Time

Free Speech

Author: Mark Satta Category:  Social and Political Philosophy , Philosophy of Law , Ethics Word Count: 989

Want to criticize your government? Burn a flag? Wear a t-shirt that says f**k the draft?

Thanks to freedom of speech , in many places you can. [1]

But what exactly is freedom of speech? And what does it permit us to say? This essay will review some influential answers to these questions.

1. Protection from Government, Not Private Actors

Freedom of speech, sometimes called freedom of expression , is a legal right to express many beliefs and ideas without government interference or punishment. This freedom does not typically prevent private entities (e.g., ordinary citizens or private organizations) from limiting speech. [2]

If freedom of speech prevented private entities from limiting speech, freedom of speech could not be applied consistently because the freedom of speech includes the ability not to speak. [3] So, e.g., if a newspaper was forced to publish every piece of writing submitted to it, then that newspaper would lose some ability to not speak. Freedom of speech also includes the right not to listen to or receive other people’s messages. [4]  

The fact that freedom of speech only prevents government interference doesn’t entail that freedom of speech is irrelevant to action by private entities. Some argue that certain private entities ought to voluntarily conform to legal standards for speech protection: e.g., that private universities should conform to the free speech standards legally required by public universities. [5]  Freedom of speech is also sometimes understood more broadly as a social value.

2. Limits on Free Speech

Freedom of speech is not an unlimited right. All governments impose some limits on what kinds of speech they will protect. This is because freedom of speech, like all rights, must be balanced against other rights and values.

Common types of speech not protected by freedom of speech include threats of violence, false advertising, and defamation (i.e., false statements that unjustly harm someone’s reputation). [6]

Many democratic nations do not protect hate speech (i.e., speech intended to threaten, degrade, or incite hatred against a group or group member based on group prejudice). But some other nations, including the United States, treat hate speech as protected speech. Whether hate speech should receive free speech protection has been much debated in recent years. [7]

  But even protected speech can be limited to an extent by the government: e.g., freedom of speech does not permit just anyone to enter a military base or a class at a public university and start talking. This is true because, even though military bases and public universities are government-run, these spaces seek to achieve other important goals that justify limiting free speech.

Freedom of speech gives you much greater latitude in a public park, a public sidewalk, or in your own home. But even in public places like parks and sidewalks, freedom of speech allows for content-neutral restrictions on speech: e.g., a town can have a noise ordinance banning playing loud music in parks near residential neighborhoods after midnight.

But it is important that these restrictions be content- and viewpoint-neutral . [8] Thus, a town could not pass an ordinance limiting speech only about certain topics or from certain perspectives in the park. Such a rule would discriminate based on the content or viewpoint of the speech. An important part of freedom of speech is that the government cannot restrict speech just because it doesn’t like the topics or agree with the speaker. Freedom of speech also doesn’t allow for the suppression of ideas simply because those ideas are unpopular.

3. Expressive Conduct

Freedom of speech protects more than just spoken and written expression. It also protects many other activities through which ideas can be expressed: [9] e.g., in the United States, abstract art, non-lyrical music, and marching in a parade are all activities protected under the freedom of speech. [10]

There are controversies concerning which activities ought to be considered expressive conduct: e.g., there is substantial disagreement about whether political spending by corporations ought to be protected as free speech. [11] There are also disagreements about if and when the creation of products like wedding cakes and photographs ought to be considered protected speech. [12]

4. Prior Restraint versus Subsequent Punishment

Freedom of speech protects people against two different types of government interference: prior restraint and subsequent punishment .

A prior restraint prevents you from speaking: it restrains your speech prior to it being made. At one point, many legal scholars thought that freedom of speech meant only freedom from prior restraint. [13] That is no longer true.

Today, most everyone believes that freedom of speech protects people not only from prior restraint, but also from subsequent punishment (i.e., from being legally sanctioned for protected speech). This makes freedom of speech more robust because it protects people not only from having their protected speech restrained, but also from having their protected speech punished by the government.

5. Why is Free Speech Important?

Philosophers and legal scholars have given many different explanations for why free speech is important. Many scholars think there are multiple good reasons why we protect free speech. [14]

Three common rationales for free speech protections are that they help us (1) discover truth, (2) respect human autonomy, and (3) preserve democracy by allowing criticism of government.

Influential advocates of the idea that free speech helps us discover truth include writer John Milton, philosopher John Stuart Mill, and U.S. Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis. [15]

One common form of the truth discovery argument is that the best way to overcome false speech is with more speech. [16] Given what we know about how viral misinformation works, such a claim can appear implausible. [17] But even if this version of the truth discovery argument is mistaken, there may be weaker forms of a truth-preservation principle that provide us with good reason to safeguard free speech: e.g., someone might argue that the fallibility of political leaders requires them to avoid suppressing others’ ideas.

6. Conclusion

Freedom of speech is valuable. Protecting it first requires understanding it.

[1] See, e.g., Brandenburg v. Ohio , Texas v. Johnson , and Cohen v. California .

[2] See, e.g., U.S. Const. Amend I .

[3] Gaebler 1982 .

[4] Corbin 2009 .

[5] Chemerinsky and Gillman 2017 .

[6] Maras 2015 , Redish and Voils 2017 , and Post 1986 .

[7] See, e.g., Waldron 2012 and Strossen 2018 .

[8] Jacobs 2003 .

[9] Tushnet, Chen, and Blocher 2017 .

[10] See, e.g., Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston .

[11] Hasen 2011 .

[12] Liptak 2017 .

[13] Rabban 1981 , Healy 2013 .

[14] Greenawalt 1989 .

[15] Milton 1644 (reprinted 1918) , Mill 1859 , Abrams v. United States (Holmes, J. dissenting ), Whitney v. California (Brandeis, J. concurring) .

[16] See, e.g., Milton 1644 (reprinted 1918) , Whitney v. California (Brandeis, J. concurring) .

[17] Wu 2018 .

Abrams v. the United States , 250 U.S. 616 (1919).

Brandenburg v. Ohio , 395 U.S. 444 (1969).

Cohen v. California , 403 U.S. 15 (1971).

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston , 515 U.S. 557 (1995).

Texas v. Johnson , 491 U.S. 397 (1989).

Whitney v. California , 274 U.S. 357 (1927).

Corbin, Caroline Mala. 2009. “The First Amendment right against compelled listening.” Boston University Law Review , 89 (3): 939-1016.

Chemerinsky, Erwin and Howard Gillman. 2017. Free Speech on Campus . Yale University Press.

Gaebler, David. 1982. “First Amendment Protection Against Government Compelled Expression and Association.” Boston College Law Review , 23 (4): 995-1023.

Greenawalt, Kent. 1989. “Free Speech Justifications.” Columbia Law Review 89 (1): 119-155.

Hasen, Richard L. 2011. “Citizens United and the Illusion of Coherence.” Michigan Law Review , 109 (4): 581-623.

Healy, Thomas. 2013. The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America . Metropolitan Books.

Jacobs, Leslie Gielow. 2003. “Clarifying the Content-Based/Content Neutral and Content/Viewpoint Determinations.” McGeorge Law Review , 34 (3): 595-635 .

Liptak, Adam. 2017. “Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers.” New York Times .

Maras, Marie-Helen. 2015. “Unprotected Speech Communicated via Social Media: What Amounts to a True Threat?” Journal of Internet Law , 19 (3): 3-9.

Mill, John Stuart. 1859. On Liberty . John W. Parker & Son.

Milton, John. 1918. Areopagitica . Cambridge University Press.

Post, Robert C. 1986. “The Social Foundations of Defamation Law: Reputation and the Constitution” California Law Review , 74: 691-742.

Rabban, David M. 1981. “The First Amendment in Its Forgotten Years.” Yale Law Journal , 90 (3): 514-595.

Redish, Martin H. and Kyle Voils. 2017. “False Commercial Speech and the First Amendment: Understanding the Implications of the Equivalency Principle.” William & Mary Bill of Rights Journal , 25: 765-799.

Strossen, Nadine. 2018. Hate: Why We Should Resist it With Free Speech, Not Censorship . Oxford University Press.

Tushnet, Mark V., Alan K. Chen, and Joseph Blocher. 2017. Free Speech Beyond Words: The Surprising Reach of the First Amendment . New York University Press.

Waldron, Jeremy. 2012. The Harm in Hate Speech . Harvard University Press.

Wu, Tim. 2018. “Is the First Amendment Obsolete?” Michigan Law Review , 117 (3): 547-581.

For Further Reading

“Freedom of Expression – Speech and Press.” Cornell Law School’s Legal Information Institute.

van Mill, David, “Freedom of Speech”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.)  

Related Essays

Philosophy of Law: An Overview  by Mark Satta

Theories of Punishment by Travis Joseph Rodgers 

Hannah Arendt’s Political Thought by David Antonini

John Rawls’ ‘A Theory of Justice’ by Ben Davies

PDF Download

Download this essay in PDF. 

About the Author

Mark Satta is an Assistant Professor of Philosophy at Wayne State University in Detroit, Michigan. He received his PhD in Philosophy from Purdue University and his JD from Harvard Law School. Some of his philosophical research interests include philosophy of law, epistemology, bioethics, and philosophy of language. MarkSatta.com

Follow 1000-Word Philosophy on Facebook , Twitter and subscribe to receive email notifications of new essays at 1000WordPhilosophy.com

Share this:, 14 thoughts on “ free speech ”.

• Pingback: Online Philosophy Resources Weekly Update - Daily Nous
• Pingback: ¿Puede ondear una bandera cristiana en el ayuntamiento? La Corte Suprema tendrá que decidir - Noticias del Mundo en español
• Pingback: Can a Christian flag fly at city hall? The Supreme Court will have to decide – The Conversation Distribution Site
• Pingback: Indoctrination: What is it to Indoctrinate Someone?  – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Philosophy of Law: An Overview – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Philosophy and Race: An Introduction to Philosophy of Race – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Condorcet’s Jury Theorem and Democracy – 1000-Word Philosophy: An Introductory Anthology
• Pingback: The Philosophy of Humor: What Makes Something Funny? – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Why Tennessee’s law limiting drag performances likely violates the First Amendment
• Pingback: Why Tennessee's law limiting drag performances likely violates the First Amendment - Quick Telecast
• Pingback: Why Tennessee’s law limiting drag performances likely violates the First Amendment - Philippine Canadian Inquirer Nationwide Filipino Newspaper
• Pingback: Why Tennessee’s law limiting drag performances likely violates the First Amendment - The San Francisco Times
• Pingback: Why Tennessee's law limiting drag performances likely violates the First Amendment - News Facts Network
• Pingback: Ancient Cynicism: Rejecting Civilization and Returning to Nature – 1000-Word Philosophy: An Introductory Anthology

Leave a Reply Cancel reply

Discover more from 1000-word philosophy: an introductory anthology.

Subscribe now to keep reading and get access to the full archive.

Type your email…

Continue reading

Freedom of Speech

This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first, and best, defenses of free speech based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle.

1. Introduction: Boundaries of the Debate

2.1 john stuart mill's harm principle, 2.2 mill's harm principle and pornography, 2.3 mill's harm principle and hate speech, 3.1 joel feinberg's offense principle, 3.2 pornography and the offense principle, 3.3 hate speech and the offense principle, 4.1 democratic citizenship and pornography, 4.2 democratic citizenship and hate speech, 4.3 paternalistic justification for limiting speech, 5. back to the harm principle, 6. conclusion, bibliography, other internet resources, related entries.

The topic of free speech is one of the most contentious issues in liberal societies. If the liberty to express oneself is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech. Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, “free speech in short, is not an independent value but a political prize” (1994,102). No society has yet existed where speech has not been limited to some extent. As John Stuart Mill argued in On Liberty , a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former:

All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed—by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to the value we place on other important ideals: “speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good” (Fish, 1994, 104). In this essay, we will examine some conceptions of the good that are deemed to be acceptable limitations on speech. We will start with the harm principle and then move on to other more encompassing arguments for limiting speech.

Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the “slippery slope.” Those who support the slippery slope argument warn that the consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should never allow any removal of government intervention because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as “solitary, poore, nasty, brutish, and short” (1968, 186).

Another thing to note before we engage with the harm principle is that we are in fact free to speak as we like. Hence, freedom of speech differs from some other forms of freedom of action. If the government wants to prevent citizens engaging in certain actions, riding motor bikes for example, it can limit their freedom to do so by making sure that such vehicles are no longer available. For example, current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published their thoughts. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree at the very moment she performed an action. The government would have to remove our vocal chords for us to be unfree in the same way as the motorcyclist is unfree.

A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it more difficult and potentially more costly to exercise our freedom. Such sanctions take two major forms. The first, and most serious, is legal punishment by the state, which usually consists of a financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction comes from social disapprobation. People will often refrain from making public statements because they fear the ridicule and moral outrage of others. For example, one could expect a fair amount of these things if one made racist comments during a public lecture at a university. Usually it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill provides a strong warning about the chilling effect of the latter form of social control.

We seem to have reached a paradoxical position. I started by claiming that there can be no such thing as a pure form of free speech: now I seem to be arguing that we are, in fact, free to say anything we like. The paradox is resolved by thinking of free speech in the following terms. I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits, and the next sections of the essay look at some possible solutions to this puzzle.

2. The Harm Principle and Free Speech

Given that Mill presented one of the first, and still perhaps the most famous liberal defense of free speech, I will focus on his claims in this essay and use them as a springboard for a more general discussion of free expression. In the footnote at the beginning of Chapter II of On Liberty , Mill makes a very bold statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. (1978, 15)

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (1978, 16)

Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological” (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons.

This is as strong an argument for freedom of speech as we are likely to find. But as I already noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (1978, 9)

There is a great deal of debate about what Mill had in mind when he referred to harm; for the purposes of this essay he will be taken to mean that an action has to directly and in the first instance invade the rights of a person (Mill himself uses the term rights, despite basing the arguments in the book on the principle of utility). The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. This is the position staked out by Mill in the first two chapters of On Liberty and it is a good starting point for a discussion of free speech because it is hard to imagine a more liberal position. Liberals find it very difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others.

If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers; he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,” (1978, 53), namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing legitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

There are other instances when the harm principle has been invoked but where it is more difficult to demonstrate that rights have been violated. Perhaps the most obvious example of this is the debate over pornography. As Feinberg notes in Offense to Others: the Moral Limits of the Criminal Law most attacks on pornography up to the 1970's were from social conservatives who found such material to be immoral and obscene; (Feinberg notes that there is no necessary link between pornography and obscenity; pornography is material that is intended to cause sexual arousal, whereas something is obscene when it causes repugnance, revulsion and shock. Pornography can be, but is not necessarily, obscene). In recent times the cause against pornography has been joined by some feminists who have maintained that pornography degrades, endangers, and harms the lives of women. This argument, to have force, must distinguish between pornography as a general class of material (aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abuse women. If it can be demonstrated that this latter material significantly increases the risk that men will commit acts of physical violence against women, the harm principle can legitimately be invoked.

When pornography involves young children, most people will accept that it should be prohibited because of the harm that is being done to persons under the age of consent. It has proved much more difficult to make the same claim for consenting adults. It is hard to show that the actual people who appear in the books, magazines, films, videos and on the internet are being physically harmed, and it is even more difficult to demonstrate that harm results for women as a whole. Very few people would deny that violence against women is abhorrent and an all too common feature of our society, but how much of this is caused by violent pornography? One would have to show that a person who would not otherwise rape or batter females was caused to do so through exposure to material depicting violence to women.

Andrea Dworkin (1981) has attempted to show that harm is caused to women by pornography, but it has proven very difficult to draw a conclusive causal relationship. If pornographers were exhorting their readers to commit violence and rape, the case for prohibition would be much stronger, but they tend not to do this, just as films that depict murder do not actively incite the audience to mimic what they see on the screen. Remember that Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not sufficient grounds for prohibition. Overall, it seems very difficult to mount a compelling case for banning pornography (except in the case of minors) based on the concept of harm as formulated by Mill.

Another difficult case is hate speech. Most European liberal democracies have limitations on hate speech, but it is debatable whether these can be justified by the harm principle as formulated by Mill. One would have to show that such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property.

The main argument against allowing the march, based on the harm principle, was that it would cause harm by inciting opponents of the march to riot. The problem with this claim is that it is the harm that could potentially be done to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate. To ban speech for this reason, i.e., for the good of the speaker, tends to undermine the basic right to free speech in the first place. If we turn to the local community who were on the wrong end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that Mill's argument does not allow for state intervention in this case. If we base our defense of speech on the harm principle we are going to have very few sanctions imposed on the spoken and written word. It is only when we can show direct harm to rights, which will almost always mean when an attack is made against a specific individual or a small group of persons, that it is legitimate to impose a sanction. One response is to suggest that the harm principle can be defined in a less stringent manner than Mill's formulation. This is a complicated issue that I cannot delve into here. Suffice it to say that if we can, then more options might become available for prohibiting hate speech and violent pornography.

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because, as already noted, most people think that free speech should be limited if it does cause illegitimate harm. George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech, he claims, cause nowhere near as much harm as political and religious speech. His conclusion is that we do not want to ban these forms of speech and the harm principle, therefore, casts its net too far. Kateb's solution is to abandon the principle in favor of almost unlimited speech.

This is a powerful argument, but there seem to be at least two problems with the analysis. The first is that the harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. I doubt that Mill would support using his arguments about harm to ban political and religious speech. The second problem for Kateb is that if we accept he is right that such speech does cause harm in the sense of violating rights, the correct response is surely to start limiting political and religious speech. If Kateb's argument is sound he has shown that harm is more extensive than we might have thought; he has not demonstrated that the harm principle is invalid.

3. The Offense Principle and Free Speech

The other response to the harm principle is that it does not reach far enough. One of the most impressive arguments for this position comes from Joel Feinberg, who suggests that the harm principle cannot shoulder all of the work necessary for a principle of free speech. In some instances, Feinberg suggests, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm. As Feinberg notes, however, this has not always been the case and he cites a number of instances in the U.S. where penalties for sodomy and consensual incest have ranged from twenty years imprisonment to the death penalty. These are victimless crimes and hence the punishment has to have a basis in the supposed offensiveness of the behavior rather than the harm that is caused.

Such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech, that would escape prosecution under the harm principle. Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples. Given the specific nature of this essay, I will not delve into the issue of offensive behavior in all its manifestations, and I will limit the discussion to offensive forms of speech. Feinberg suggests that a variety of factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

How does the offense principle help us deal with the issue of pornography? Given the above criteria, Feinberg argues that books should never be banned because the offensive material is easy to avoid. If one has freely decided to read the book for pleasure, the offense principle obviously does not apply, and if one does not want to read it, it is easily avoidable. And if one is unaware of the content and should become offended in the course of reading the text, the solution is simple-one simply closes the book. A similar argument would be applied to pornographic films. The French film Bais-Moi was in essence banned in Australia in 2002 because of its offensive material (it was denied a rating which meant that it could not be shown in cinemas). It would seem, however, that the offense principle outlined by Feinberg would not permit such prohibition because it is very easy to avoid being offended by the film. It should also be legal to advertise the film, but some limits could be placed on the content of the advertisement so that sexually explicit material is not placed on billboards in public places (because these are not easily avoidable). At first glance it might seem strange to have a more stringent speech code for advertisements than for the thing being advertised; the harm principle would not provide the grounds for such a distinction, but it is a logical conclusion of the offense principle.

What of pornography that is extremely offensive because of its violent or degrading content? In this case the offense is more profound: simply knowing that such films exist is enough to deeply offend many people. The difficulty here is that bare knowledge, i.e., being offended by merely knowing that something exists or is taking place, is not as serious as being offended by something that one does not like and that one cannot escape. If we allow that films should be banned because some people are offended, even when they do not have to view them, logical consistency demands that we allow the possibility of prohibiting many forms of expression. Many people find strong attacks on religion, or t.v. shows by religious fundamentalists deeply offensive. Hence, Feinberg argues that even though some forms of pornography are profoundly offensive to a lot of people, they should still be permitted.

Hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition. If we examine some of the other factors regarding offensive speech mentioned above, Feinberg suggests that the march through Skokie does not do very well: the social value of the speech seems to be marginal, the number of people offended will be large, and it is difficult to see how it is in the interests of the community. These reasons also hold for violent pornography.

A key difference, however, is in the intensity of the offense; it is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult the members of the community with Nazi symbols. Nor, according to Feinberg, was there any political content to the speech. The distinction between violent pornography and this specific example of hate speech is that a particular group of people were targeted and the message of hate was paraded in such a way that it could not be easily avoided.It is for these reasons that Feinberg suggests hate speech can be limited.

He also claims that when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. If pornographers engaged in the same behavior, parading through neighborhoods where they were likely to meet great resistance and cause profound offense, they too should be prevented from doing so. It is clear, therefore, that the crucial component of the offense principle is the avoidability of the offensive material. For the argument to be consistent, it must follow that many forms of hate speech should still be allowed if the offense is easily avoidable. Nazis can still meet in private places, or even in public ones that are easily bypassed. Advertisements for such meetings can be edited (because they are less easy to avoid) but should not be banned.

4. Democracy and Free Speech

Very few liberals take the Millian view that only speech causing direct harm should be prohibited; most support some form of the offense principle. Some are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior to others on the grounds of race or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as sexual objects, who are often violently mistreated. Rae Langton, for example, starts from the liberal premise of equal concern and respect and concludes that it is justifiable to remove certain speech protections for pornographers. She avoids basing her argument on harm: “If, for example, there were conclusive evidence linking pornography to violence, one could simply justify a prohibitive strategy on the basis of the harm principle. However, the prohibitive arguments advanced in this article do not require empirical premises as strong as this…they rely instead on the notion of equality” (1990, 313).

Working within the framework of arguments supplied by Ronald Dworkin, who is opposed to prohibitive measures, she tries to demonstrate that egalitarian liberals such as Dworkin, should, in fact, support the prohibition of pornography. She suggests that we have “reason to be concerned about pornography, not because it is morally suspect, but because we care about equality and the rights of women” (1990, 311). This is an approach also taken by Catherine McKinnon (1987). She distinguishes, much like Feinberg, between pornography and erotica. Erotica might be explicit and create sexual arousal, neither of which is grounds for complaint. Pornography would not come under attack if it did the same thing as erotica; the complaint is that it portrays women in a manner that undermines their equal status as citizens: “We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual” (1987, 176).

Langton agrees and concludes that “women as a group have rights against the consumers of pornography, and thereby have rights that are trumps against the policy of permitting pornography…the permissive policy is in conflict with the principle of equal concern and respect, and that women accordingly have rights against it” (1990, 346). Because she is not basing her argument on the harm principle, she does not have to show that women are harmed by pornography. For the argument to be persuasive, however, one has to accept that permitting pornography does mean that women are not treated with equal concern and respect.

To argue the case above, one has to dilute one's support for freedom of expression in favor of other principles, such as equal respect for all citizens. This is a sensible approach according to Stanley Fish. He suggests that the task we face is not to arrive at hard and fast principles that govern all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will tend to remind us that when we are discussing free speech, we are not dealing with speech in isolation; what we are doing is comparing free speech with some other good. For instance, we have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm.

I suggested early in this essay that to begin from a principle of unregulated speech is to start from a place that itself needs to be vigorously defended rather than simply assumed. Stanley Fish is of a similar temperament and suggests that we need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action” (1994, 111). Is speech promoting or undermining our basic values? “If you don't ask this question, or some version of it, but just say that speech is speech and that's it, you are mystifying—presenting as an arbitrary and untheorized fiat—a policy that will seem whimsical or worse to those whose interests it harms or dismisses” (1994, 123).

In other words, there have to be reasons behind the argument to allow speech; we cannot simply say that the First Amendment says it is so, therefore it must be so. The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech. A good policy “will not assume that the only relevant sphere of action is the head and larynx of the individual speaker” (Fish, 1994, 126). Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, “it depends. I am not saying that First Amendment principles are inherently bad (they are inherently nothing), only that they are not always the appropriate reference point for situations involving the production of speech” (1994, 113). But, all things considered, “I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope towards tyranny. This is a judgement for which I can offer reasons but no guarantees” (1994, 115).

Hence, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say, guided but not hidebound by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: “No such thing as free (nonideologically constrained) speech; no such thing as a public forum purged of ideological pressures of exclusion” (Fish, 1994, 116). Speech always takes place in an environment of convictions, assumptions, and perceptions i.e., within the confines of a structured world. The thing to do, according to Fish, is get out there and argue for one's position.

We should ask three questions according to Fish: “[g]iven that it is speech, what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?” (1994, 127). He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas. Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the center of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is such a great football team but it would be completely inappropriate (and open to censure) to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. A campus is not simply a “free speech forum but a workplace where people have contractual obligations, assigned duties, pedagogical and administrative responsibilities” (1994,129). Almost all places in which we interact are governed by underlying values and hence speech will have to fit in with these principles: “[r]egulation of free speech is a defining feature of everyday life” (Fish, 1994,129). Thinking of speech in this way removes a lot of the mystique. Whether we should ban hate speech is just another problem along the lines of whether we should allow university professors to talk about football in lectures.

Although Stanley Fish takes some of the mystique away from the value of speech, he still thinks of limitations largely in terms of other regarding consequences. There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of the action involved (whether it be speech or some other form of behavior) and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category. Most liberals are wary of such arguments because we are now entering the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Mill, for example, is an opponent of paternalism generally, but he does believe there are certain instances when intervention is warranted. He suggests that if a public official is certain that a bridge will collapse, he can prevent a person crossing. If, however, there is only a danger that it will collapse the person can be warned but not coerced. The decision here seems to depend on the likelihood of personal injury; the more certain injury becomes, the more legitimate the intervention. Prohibiting freedom of speech on these grounds is very questionable in all but extreme cases (it was not persuasive in the Skokie case) because it is very rare that speech would produce such a clear danger to the individual.

Hence we have exhausted the options that are open to the liberal regarding limitations on free speech and one cannot be classed as a liberal if one is willing to stray further into the arena of state intervention than already discussed. Liberals tend to be united in opposing paternalistic and moralistic justifications for limiting free expression. They have a strong presumption in favor of individual liberty because, it is argued, this is the only way that the autonomy of the individual can be respected. To prohibit speech for reasons other than those already mentioned means that one has to argue that it is permissible to limit speech because of its unsavory content, or as Feinberg puts it, one has to be willing to say that

[i]t can be morally legitimate for the state, by means of the criminal law, to prohibit certain types of action that cause neither harm nor offense to any one, on the grounds that such actions constitute or cause evils of other kinds. ( Harmless Wrongdoing , p. 3)

Acts can be “evil” if they are dangerous to a traditional way of life, because they are immoral, or because they hinder the perfectibility of the human race. Many arguments against pornography take the form that such material is wrong because of the moral harm it does to the consumer. Liberals oppose such views because they are not overly interested in trying to mold the moral character of citizens.

We began this examination of free speech with the harm principle; let us end with it and assess whether it helps us determine the proper limits of free expression. The principle suggests that we need to distinguish between legal sanction and social disapprobation as means of limiting speech. As already noted, the latter does not ban speech but it makes it more uncomfortable to utter unpopular statements. J.S. Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, Mill also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because it produces stunted, pinched, hidebound and withered individuals: “everyone lives as under the eye of a hostile and dreaded censorship…[i]t does not occur to them to have any inclination except what is customary” (1978, 58). He continues:

the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind…at present individuals are lost in the crowd…the only power deserving the name is that of masses…[i]t does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought. (1978, 63-4)

With these comments, and many of a similar ilk, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority.

It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation:

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. (1978, 97 [author's emphasis]

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful persons can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the persons, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill[special-character:#146s arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Hence we see that one of the great defenders of the harm principle seems to shy away from it at certain crucial points and it is unlikely that a defense of free speech can rest on the principle alone. It does, however, remain an elementary part of the liberal defense of individual freedom.

Liberals tend to defend freedom generally, and free speech in particular, for a variety of reasons beyond the harm principle; speech fosters authenticity, genius, creativity, individuality and human flourishing. Mill tells us specifically that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence. Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography? It is worth pondering the relationship between speech and truth. If we had a graph where one axis was truth and the other was free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured? It is certainly questionable whether arguments degenerate into prejudice if they are not constantly challenged. Devil's advocates are often tedious rather than useful interlocutors. None of this is meant to suggest that free speech is not vitally important; this is, in fact, precisely the reason we need to find good arguments in its favor. But sometimes supporters of free speech, like its detractors, have a tendency to make assertions without providing compelling evidence to back them up.

In a liberal society, we have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. The offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that all forms of pornography and most forms of hate speech will escape punishment. If this argument is acceptable, it seems only logical that we should extend it to other forms of behavior. Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither the harm or the offense principles as outlined by Mill support criminalizing bigamy or drug use, nor the enforcement of seat belts, crash helmets and the like.

Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state should decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes offense. As we have seen, even Mill seems to back away somewhat from the harm principle. Hence the freedom of expression supported by the harm principle as outlined in Chapter One of On Liberty and by Feinberg's offense principle is still a possibility rather than a reality. It is also up to the reader to decide if it is an appealing possibility.

• Abel, R. 1998. Speaking Respect, Respecting Speech . Chicago: University of Chicago Press.
• Abrams, F. 2006. Speaking Freely: Trials of the First Amendment . London: Penguin
• Alexander, A. 2005 Is There a Right to Freedom of Expression? . Cambridge: Cambridge Studies in Philosophy and Law.
• Allen, D. 1995. Freeing the first Amendment: Critical Perspectives on Freedom of Expression . New York: New York University Press.
• Anderson, E., 1991, “J.S. Mill's Experiments in Living” Ethics 102.
• Atkins, R. and S. Mintcheva (eds). 2006. Censoring Culture: Contemporary Threats to Free Expression . New Press.
• Edwin Baker, C., 1989. Human Liberty and Freedom of Speech . Oxford: Oxford University Press.
• Bird, A. 2002. “Illocutionary Silencing”, Pacific Philosophical Quarterly 83(1).
• Bollinger, L. 1988. The Tolerant Society . Oxford: Oxford University Press.
• Bollinger, L. and G. Stone. 2003. Eternally Vigilant: Free Speech in the Modern Era . Chicago: University of Chicago Press.
• Bosmajian, H. 1999. Freedom Not to Speak . New York: New York University Press.
• Braun, S. 2004. Democracy off Balance: Freedom of Expression and hate Propaganda Law in Canada . Toronto: University of Toronto Press.
• Byrd, C. 2006. Potentially Harmful: The Art of American Censorship . Georgia: Georgia State University Press.
• Butler, J. 1997. Excitable Speech: A Politics of Performance . London: Routledge.
• Coetzee, J.M. 1997. Giving Offense: Essays on Censorship . Chicago: University of Chicago Press.
• Cohen, J., 1993, “Freedom of Epression,” in Philosophy and Public Affairs , Vol 22, No.3.
• Cohen-Almagor, R. 2005. Speech, Media and Ethics: The Limits of Free Expression: Critical Studies on Freedom of Expression, Freedom of the Press, and th Public's Right to Know . Palgrave Macmillan.
• Cohen-Almagor, R. 2006. The Scope of Tolerance: Studies on the Cost of Free Expression and Freedom of the Press . Routledge.
• Council of Europe. 2007. Freedom of Expression in Europe: Case-Law Concerning Article 10 of the European Convention of Human Rights . Council of Europe.
• Couvares, F.G. 2006. Movie Censorship and American culture . Mass: University of Massachusetts Press.
• Curtis, M.K. 2000. Free Speech, “The People's Darling privilege”: Struggles for Freedom of Expression in American History . North Carolina: Duke University Press.
• Downs, D.A. 1992. The New Politics of Pornography . Chicago: University of Chicago Press.
• Dworkin, A., 1981, Pornography: Men Possessing Women . London: The Women's Press.
• Dworkin, R., 1977, Taking Rights Seriously . Cambridge: Harvard University Press.
• –––, 1985, A Matter of Principle . Cambridge: Harvard University Press.
• Edwin Baker, C. 1992. Human Liberty and Freedom of Speech . Oxford: Oxford University Press.
• Feinberg, J., 1984, Harm to Others: The Moral Limits of the Criminal Law . Oxford: Oxford University Press.
• –––, 1985, Offense to Others: The Moral Limits of the Criminal Law . Oxford: Oxford University Press.
• Fish, S. 1994, There's No Such Thing as Free Speech…and it's a good thing too . New York: Oxford University Press.
• Fiss, O.M. 1996. Liberalism Divided: Freedom of Speech and the Many Uses of State Power . Boulder: Westview Press.
• Flathman, R., 1987, The Philosophy and Politics of Freedom . Chicago: University of Chicago Press.
• Garry, P.M. 1994. Scrambling for Protection: The New media and the First Amendment . Pittsburgh: University of Pittsburgh Press.
• Gates, H.L. 1995. Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties . New York: New York University Press.
• Graber, M.A. 1992. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism . Berkeley: University of California Press.
• Gray, J., 1996, Mill on Liberty: A Defence . London: Routledge.
• Greenawalt, K. 1996. Fighting Words . Princeton: Princeton University Press.
• Hashim Kamali, Mohammad. 1997. Freedom of Expression in Islam . Islamic Texts Society.
• Hobbes, Thomas, 1968, Leviathan , ed. C.B. Macpherson. London: Penguin Books.
• Jacobson, D., 2000, “Mill on Liberty, Speech, and the Free Society,” in Philosophy and Public Affairs , 29 no.3.
• Kateb, G., 1989, “The Freedom of Worthless and Harmful Speech” in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar . ed. Bernard Yack. Chicago: University of Chicago Press.
• Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies , Vol 50.
• Langton, R., 1990. “Whose Right? Ronald Dworkin, Women, and Pornographers,” in Philosophy and Public Affairs , 19, no.4.
• –––, 1993, “Speech Acts and Unspeakable Acts,” in Philosophy and Public Affairs , Vol.22, No.4.
• Lewis, A. 1995. Make No Law . Random House.
• Lyons, D., 1994, Rights, Welfare, and Mill's Moral Theory . New York: Oxford University Press.
• MacKinnon, C., 1987, Feminism Unmodified . Cambridge: Harvard University Press.
• Magee, J. 2002. Freedom of Expression . Greenwood Press.
• Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property .Minneapolis: University of Minnesota Press.
• Mill, J.S., 1978, On Liberty . Indianapolis:Hackett Publishing Press.
• Nelson, S.P. 1994. Beyond the First Amendment: The Politics of Free Speech and Pluralism . Baltimore: Johns Hopkins University Press.
• Netanel, N.W. 2008. Copyright's Paradox: Property in Expression/Freedom of Expression . Oxford: Oxford University Press.
• O'Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory . Routledge.
• Pinaire, B. 2008. The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections . Stanford: Stanford University Press.
• Post, S.G. 2003. Human Nature and the Freedom of Public Religious Expression . University of Notre Dame Press.
• Rauch, J. 1995. Kindly Inquisitors: The New Attacks on Free Thought . Chicago: University of Chicago Press.
• Raz, J., 1986, The Morality of Freedom . Clarendon: Oxford University Press.
• Rees, J.C., 1991, “A Re-reading of Mill on Liberty” in J.S. Mill-On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Riley, J., 1998, Mill on Liberty . New York: Routledge.
• Scanlon, T., 1972, “A Theory of Freedom of Expression,” Philosophy and Public Affairs , 1, no.2.
• Schauer, F. Free Speech: A Philosophical Enquiry . Cambridge: Cambridge University Press.
• Shiffrin, S. 1990. The First Amendment: Democracy and Romance . Cambridge MA: Harvard University Press.
• Soley, L. 2002. Censorship INC.: The Corporate Threat to Free Speech in the United States . Monthly Review Press.
• Stone, G. 2004. Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism .
• Strum, P. 1999. When the Nazis came to Skokie: Freedom for Speech We Hate . Kansas University Press.
• Sunstein, C., 1994, Democracy and the Problem of Free Speech . New York: Free Press.
• –––, 1995. Democracy and the Problem of Free Speech . Free Press.
• –––, 2003. Why Societies Need Dissent . Cambridge MA: Harvard University Press.
• Ten, C.L., 1991, “Mill's Defence of Liberty,” in J.S. Mill—On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Walker, S. 1994. Hate Speech: The History of an American Controversy . University of Nebraska Press.
• Waluchow, W.J. 1994. Free Expression: Essays in Law and Philosophy . Oxford: Oxford University Press.
• West, C. 2003. “The Free Speech Argument Against Pornography”, Canadian Journal of Philosophy 33(3).
• West, Caroline, “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Fall 2005 Edition) , Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2005/entries/pornography-censorship/>.

[As of January 2008, typing “free speech” on Google will net millions of entries. Hence it is best to simply jump in and see what one can find. It is worth noting that almost all of them are devoted to the promotion of speech in the face of censorship. This reflects a strong bias on the internet in favor of the “slippery slope” view of free speech. There are not many entries where an argument is made for placing limitations on free expression. Wikipedia has a quite a few entries dealing with censorship, free speech, pornography, and crime statistics. Here are a few other cites to get you going.]

• American Civil Liberties Union
• Free Speech Movement archives (related to Berkeley in the 1960's)
• Freedom Forum , (a forum dedicated to free speech and a free press)
• Free Expression , Center for Democracy and Technology, (a website related to the issue of free speech and the internet)
• Electronic Frontiers Australia (an Australian website on censorship and free speech)
• The Kellor Center for the Study of the First Amendment

democracy | equality | Mill, John Stuart | paternalism | pornography: and censorship

THE ALGONQUIN HARBINGER

• Limitations are necessary for freedom of speech

Meredith Wu

Staff writer Verina Hanna reminds that the freedom of speech is not an excuse for harmful language and words.

Verina Hanna , Staff Writer March 17, 2022

More than once in a classroom, I’ve seen students picking on someone who didn’t even bother them. When someone tells them what they’re doing is rude, they generally reply saying, “I can say whatever I want. The freedom of speech protects me!” 

Is that right? Can people say whatever they want? Yes, freedom of speech gives people the right to say what they think, but what if what they say hurts millions of people or even just one person? Then is freedom of speech still protecting people?

The First Amendment in the Bill of Rights reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This amendment does not mean people have the right to harm one another with their speech; it actually means the government can not jail, fine or impose civil liability on people or organizations based on what they say or write. Therefore, yes, the government can’t stop you, but that doesn’t mean that you can go out and say whatever you want and not get consequences. 

Many people believe that freedom of speech is exactly how it sounds—that it gives them the right to say anything they want, anytime they want—but this is not the reality. There are limitations to this freedom. 

The limitations of the freedom of speech are based on time, place and manner, regardless of the point of view. They are restrictions that balance other rights. For example, speech that significantly disrupts the school environment or infringes on the rights of others may be prohibited by schools. Many courts have ruled that school officials have the authority to limit obscene student speech.

The limitations of the freedom of speech are based on time, place and manner, regardless of the point of view. They are restrictions that balance other rights.

— Verina Hanna

There have been many court cases that have determined how far the freedom of speech should go. According to The First Amendment Encyclopedia , the Supreme Court determined in Tinker v. Des Moines Independent Community School District (1969) that public school officials cannot limit student expression unless they can reasonably predict that it will severely disrupt school activities or infringe on others’ rights. However, in Bethel School District No. 403 v. Fraser (1986), the Supreme Court held that when a student was reprimanded for making a lewd and vulgar speech at a school assembly, school officials did not violate his free expression and due process rights. So this shows that, yes, people do have the freedom of speech but there is a limit that cannot be passed when the speech is offensive or demonstrably harmful to others.

People can’t go around saying what they think all the time when that speech infringes on others’ rights. There needs to be a limit for what people do say, where people say it, when people say it and even, in some cases, what it is about. 

People might say that the First Amendment doesn’t take sides. Some people claim that making restrictions for putting limitations on the freedom of speech will only make the freedom of speech seem biased or unfair.  However, I believe that even though we do have freedom of speech in the United States, people should recognize and respect this right’s limitations. Just because a person has the right to speak does not mean they have the right to use that power to hurt others.

Words are very powerful. What we say can affect people, change people, hurt people, encourage people and give hope. There is nothing wrong with supporting people or making someone’s day. 

A donation of $40 or more includes a subscription to the 2023-24 print issues of The Harbinger. We will mail a copy of our fall, winter, spring and graduation issues to the recipient of your choice. Your donation supports the student journalists of Algonquin Regional High School and allows our extracurricular publication to purchase equipment and cover our annual website hosting costs.

• The Great Debate: Should modern literature replace the classics in English class?
• Mocking accents spreads unjust, offensive stereotypes
• Excessive homework negatively impacts mental health, causes unnecessary stress
• Oscars 2024 Nominations And Predictions
• The Ultimate Girl Scout Cookie Guide

What is the best part of spring?

• Sun and warmer weather
• Flowers and nature blooming
• Spring sports
• School is almost over!

View Results

• Polls Archive

The Requireds are tired

EDITORIAL: Control your own branding

Who to watch in this year’s Women’s March Madness Basketball

This year’s March Madness could be full of surprises 

Consume less: Save the Earth and our wallets 

Navigating the Buzz: Rethinking Caffeine Culture in High Schools

American tipping culture is out of control

Appreciate artists who didn’t win at the 2024 Grammys

The 1970s had music right

Give Us a Break: Seniors should be able to leave cafeteria studies

The official student news site of Algonquin Regional High School in Northborough, MA

• Corrections

Comments (9)

Cancel reply

Your email address will not be published. Required fields are marked *

Jay • Jan 24, 2024 at 2:04 pm

very much goodie read

Dingle cringle berry • Jan 16, 2024 at 6:08 pm

kai • Jan 16, 2024 at 4:40 pm

pablo martinez • Dec 8, 2023 at 9:38 am

nah man this ain´t it

trad • Jan 30, 2023 at 6:05 pm

yay • Mar 10, 2023 at 12:06 pm

John Kadis • Jan 2, 2023 at 10:21 pm

I agree. Indeed this is the best article.

shahraib • Oct 6, 2022 at 5:10 am

Best article… I found it very informative.. Thankyou.

liberty • Nov 9, 2022 at 1:16 pm

• The Great Debate
• Senior Issue
• Movies & TV
• Video Games
• Pro & College
• Cafe Takeaways
• Chicken Sandwich Chasers
• Club Detectors
• Hidden Gems
• The Racer Ru-view
• Print Issues

First Amendment – Freedom of Speech

The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular. Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements).

1735 Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787 Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791 First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798 Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1836 Efforts To Stifle Debate About Slavery Unsuccessful

As abolitionists develop the tactic of submitting many antislavery petitions to Congress, proslavery members of the U.S. House of Representatives adopt “gag” rules that bar such petitions from being introduced and debated. In 1844, former President John Quincy Adams, then a representative from Massachusetts, leads the effort to repeal these rules.

1859 ‘On Liberty’ Is Published

British philosopher John Stuart Mill publishes the essay On Liberty , arguing that only through the free exchange of ideas, even offensive ones or ones held by a minority of individuals, can society find “truth.”

1864 Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1873 Circulation Of Birth Control Information Outlawed

An “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” is passed by Congress. The act, more commonly known as the Comstock Act – after anti-obscenity activist Anthony Comstock – makes it a crime to publish, distribute or possess information about contraception or abortion, or to distribute or possess devices or medications used for those purposes.

Lawmakers were responding to increasing concern about abortion, the institution of marriage, and the changing role of women in society.

1917 Congress Passes Espionage Act Of 1917

With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.

1918 Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1919 ‘Clear And Present Danger’ Exception Established

In Schenck v. United States , the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.

1919 ‘Marketplace Of Ideas’ Concept Defined

In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.

1925 Court: First Amendment Applies To States’ Laws

In Gitlow v. New York , the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1926 Mencken Arrested For ‘Indecent Literature’

H.L. Mencken is arrested in Boston for distributing copies of his American Mercury magazine, which contains a story with a prostitute as a central character. Censorship groups in Boston say the magazine is obscene and order Mencken’s arrest for selling “indecent literature.”

1927 Criminal Syndicalism Law Constitutional

In Whitney v. California , the U.S. Supreme Court rules that California’s criminal syndicalism law is constitutional. A member of the state’s Communist Labor Party was prosecuted under the law, which barred advocating, teaching or aiding the commission of a crime, including “terrorism” as a way to achieve change in industrial ownership or political change. The Court says that freedom of speech is not an absolute right.

1931 Court: Symbolic Expression Of Ideas Also Protected

In Stromberg v. California , the U.S. Supreme Court invalidates the state court conviction of a 19-year-old member of the Young Communist League for displaying a red flag as “an emblem of opposition to the United States government.” The Court rules that the woman’s nonverbal, symbolic expression of her antigovernment opinions is protected just as are any words that she might write or speak to express those opinions.

1931 Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1937 Court: First Amendment Protects ‘Peaceable Assembly’

In De Jonge v. Oregon , the U.S. Supreme Court overturns the conviction of Dirk De Jonge for participating in a Communist Party political meeting, holding that “peaceable assembly for lawful discussion cannot be made a crime.” That right, the Court finds, is not dependent upon whether one agrees with the ideas being discussed by the people assembled.

1940 Ban On Religious Solicitation Struck Down

In Cantwell v. Connecticut , the U.S. Supreme Court holds that two Jehovah Witnesses’ rights of free speech and free exercise of religion were violated when they were arrested for proselytizing in a Catholic neighborhood. The Court says the solicitation law, which allows a state official to refuse a permit based on religious grounds, is unconstitutional. The Court also overturns a breach of peace conviction, saying the pair’s message was protected religious speech. The case is the first to extend the free exercise of religion clause to the states and to establish the ‘time, manner and place’ rule, which says the state can regulate the free exercise right to ensure it is practiced in a reasonable time, manner and place.

1940 Flag Salute Requirement Is Upheld

In Minersville School District v. Gobitis , the U.S. Supreme Court upholds a Pennsylvania flag-salute law after a challenge by a Jehovah’s Witness family whose two children were expelled for refusing to salute the flag. They believe the salute is forbidden by biblical commands. The Court says the flag is a symbol of national unity, which is the “basis of national security.”

1942 ‘Fighting Words’ Exception Established

In Chaplinsky v. New Hampshire , the U.S. Supreme Court upholds the conviction of a Jehovah’s Witness who had called a police officer a “damned fascist.” The Court rules that there are certain words that “by their very utterance inflict injury” and are of “such slight social value” that they are not welcome in the marketplace of ideas. This category of speech, named “fighting words” by the Court, is not protected by the First Amendment. Consequently, the speaker may be prosecuted.

1943 Court: Required Flag Salute Violates First Amendment

In West Virginia State Board of Education v. Barnette , the U.S. Supreme Court overrules its decision in Minersville School District v. Gobitis and decides that a West Virginia law requiring students to salute the American flag violates the free speech clause of the First Amendment. “Compulsory unification of opinion,” the Court says, is “antithetical to First Amendment values.”

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

In United Public Workers v. Mitchell , the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.

Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.

1949 Scope Of ‘Fighting Words’ Doctrine Limited

In Terminiello v. Chicago , the U.S. Supreme Court overturns the conviction of Father Arthur Terminiello for disturbing the peace. He was convicted after giving a controversial speech that criticized various racial and political groups. Several disturbances by protesters occurred after the speech. The Court says “fighting words” can be restricted only when they are “likely to produce a clear and present danger.” Justice William O. Douglas writes that free speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

1952 Justices Uphold Group Libel Law

In Beauharnais v. Illinois , the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1957 Obscenity Exception To First Amendment Established

In Roth v. United States , the U.S. Supreme Court decides that it is not a violation of the First Amendment for the government to regulate, or even criminalize, speech that is “obscene,” because, just like libel and “fighting words,” obscene speech is “utterly without redeeming social importance.” The Court says that in defining obscenity, the government must consider “contemporary community standards.” What was “obscene” 50 years ago may not be in today’s society.

1958 Court Protects ‘Free Association’ In NAACP Case

In NAACP v. Alabama , the U.S. Supreme Court holds that when Alabama state officials demanded that the NAACP hand over its membership list, the members’ right of “free association” was violated. Although no such right is specifically included in the First Amendment, the Court says it is a necessary extension of the rights to free speech and free assembly: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the due process clause of the 14th Amendment, which embraces freedom of speech.”

1959 No Protection From Congressional Inquiry

The U.S. Supreme Court finds professor Lloyd Barenblatt’s First Amendment rights were not violated when he was convicted of contempt of Congress for refusing to answer questions about his religious and political beliefs before the House Un-American Activities Committee. In Barenblatt v. United States , the Court says that such questions are legitimate when the investigation’s goal is to “aid the legislative process” and to protect important government interests.

1961 Symbolic Speech Of Civil Rights Protesters Protected

In Garner v. Louisiana , the U.S. Supreme Court overturns the convictions of 16 African American demonstrators for disturbing the peace in three lunch counter sit-ins at all-white restaurants in Baton Rouge, La., to protest segregation. The cases were consolidated under Garner v. Louisiana. Referring to earlier court opinions protecting symbolic speech, Justice John Harlan explains that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

1964 Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan , the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1966 Loyalty Oath Is Struck Down

In Elfbrandt v. Russell , the U.S. Supreme Court invalidates an Arizona law requiring state employees to take a loyalty oath. Anyone who took the oath and then became a member of the Communist Party or any other group that advocated the violent overthrow of the government could be prosecuted for perjury and fired. The Court says the law violates the due process clause by infringing on the right of free association. The Court holds that the law is too broad by punishing a person who joins a group that has both legal and illegal purposes but does not subscribe to the illegal purpose.

1966 Smith Act Is Found Constitutional

In Dennis v. United States , the U.S. Supreme Court upholds the convictions of 12 Communist Party leaders who were convicted under the Smith Act of 1940, formally known as the Alien Registration Act. The law makes it illegal to teach or advocate the overthrow or destruction of the U.S. government, or publish any materials or organize a group that endorses such action. The majority writes that the “existence of the conspiracy” creates “a clear and present danger.”

1968 Limits Placed On Symbolic Speech Right

In United States v. O’Brien , the U.S. Supreme Court lets stand the conviction of an activist who burned his draft card to protest the Vietnam War. Although the Court admits that the law against destroying a draft card does limit speech, it rules that the limit is acceptable because it serves an important government interest (i.e., the smooth operation of the draft during wartime) and is “content-neutral,” meaning that it is not meant to punish any particular point of view or opinion.

1968 Teacher’s Free Speech Right Upheld

The U.S. Supreme Court decides that a public school teacher’s free speech right was violated when he was fired for writing a letter to the newspaper criticizing how money was divided between athletics and academics. The justices say in Pickering v. Board of Education that public school teachers are entitled to some First Amendment protection and that the teacher was speaking out more as a citizen than as a public employee when he wrote the letter.

1969 Students’ Right To Symbolic Speech Upheld

In Tinker v. Des Moines Independent Community School District , the U.S. Supreme Court rules that the school board was wrong to suspend three students who wore black armbands to school to protest the Vietnam War. The Court finds that the students’ passive protest posed no risk of disrupting school activities. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s opinion says.

1969 Private Ownership Of Obscene Material Protected

In Stanley v. Georgia , the U.S. Supreme Court finds unconstitutional a Georgia obscenity law that prohibits the possession of such material. The Court rules that the Constitution “protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts.”

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

In Brandenburg v. Ohio , the U.S. Supreme Court reverses the conviction of a Ku Klux Klan leader under an Ohio law prohibiting speech that calls for crime or violence as a way of winning political change. The Court holds that unless the speaker incites his listeners to “imminent lawless action,” the speech is protected by the First Amendment.

1971 Antiwar Expression Is Ruled Protected Speech

In Cohen v. California , the U.S. Supreme Court overturns the conviction of a man convicted of disturbing the peace for wearing a jacket bearing a vulgarism about the draft. The Court concludes that the expression, however crude, did not pose enough of a risk of inciting disobedience to override his First Amendment right to express his opposition to the Vietnam War.

1971 Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972 Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1973 Court: States Can Regulate Obscene Exhibits

In Paris Adult Theatre I v. Slaton , the U.S. Supreme Court upholds a Georgia injunction against the showing of allegedly obscene films at an adult movie theater that allowed only patrons at least 21 years old. The Court finds that “legitimate state interests,” such as preserving quality of life and public safety, are at stake in regulating commercialized obscenity even if the exhibits are limited to consenting adults.

1973 Definition Of Obscenity Is Clarified

In Miller v. California , the U.S. Supreme Court establishes a new definition of obscenity, setting out a three-part test for judging whether material is obscene: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1976 Money Spent In Political Campaigns Considered Speech

When Congress tries to limit expenditures in political campaigns, the U.S. Supreme Court, in Buckley v. Valeo , invalidates provisions that restrict candidates’ ability to spend their own money on a campaign, limit campaign expenditures by an outside group, and limit total campaign spending. The Court compares spending restrictions with restrictions on “political speech.” The majority reasons that discussion of public issues and political candidates are integral to the U.S. political system under the Constitution. The Court says government-imposed limits on the amount of money a person or group can spend on political communication reduces “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

1976 Justices Protect Commercial Speech

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , the U.S. Supreme Court strikes down a state law that forbids pharmacists from including the prices of prescription drugs in their ads because it is unprofessional conduct. Although such information does not convey an idea other than proposing that a purchase be made, the Court finds that commercial speech enjoys the same First Amendment protection as noncommercial speech.

1977 Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court , the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company , when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1978 Nazis Permitted To March In Skokie, Ill.

The 7th U.S. Circuit Court of Appeals invalidates a city law passed in Skokie, Ill., home to 5,000 Holocaust survivors, to prevent a neo-Nazi group from holding a march there. The Court rules in Collin v. Smith that the group should be permitted to march in their uniforms, distribute anti-Semitic leaflets and display swastikas. The court does not deny the group’s symbols are offensive to many observers, but concludes that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The U.S. Supreme Court will refuse to review the case.

1978 FCC Can Regulate Indecent Speech

The U.S. Supreme Court, in FCC v. Pacifica Foundation , allows the Federal Communications Commission to regulate indecent speech broadcast over the air. The Court says the FCC can channel broadcasts that contain indecent language to late-night hours, when children are less likely to be listening.

1980 Court Establishes Commercial Speech Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , the U.S. Supreme Court decides that a state ban on promotional advertising by the electric utility is unconstitutional. The ruling sets up a four-part test to decide when commercial speech can or cannot be regulated: (1) It must not be misleading or involve illegal activity (2) The government interest advanced by the regulation must be significant (3) The regulation must directly advance the government interest (4) The regulation must be limited to serving the asserted government interest.

1982 School Board Cannot Ban Library Books

In Board of Education v. Pico , the U.S. Supreme Court rules that a school board’s decision to remove books from the school library based simply on their content violates the First Amendment’s free speech right. The Court says the First Amendment protects the right to receive information and ideas. The justices allow that books that are “pervasively vulgar” or educationally unsuitable can be removed.

1982 Justices Rule Child Porn Not Protected

In New York v. Ferber , the U.S. Supreme Court holds that the First Amendment does not protect child pornography. Child pornography joins certain categories of speech – libel, “fighting words,” words that present a “clear and present danger” of violence, and obscene material – that are considered to have such negative consequences that it is acceptable for the government to restrict them.

1983 Public Employees’ Free Speech Right Defined

In Connick v. Myers , a landmark free-speech ruling for public employees, the U.S. Supreme Court says that an assistant district attorney’s free speech right was not violated when she was fired for distributing a questionnaire about internal office practices to fellow prosecutors. At least one of Myers’ questions related to a matter of public concern: whether assistant prosecutors felt pressured to work in political campaigns. But, relying on its 1968 Pickering ruling, the Court decides that the employer’s interest in a disruption-free workplace outweighs the employee’s right to comment on an issue of public concern.

1985 Anti-Pornography Law Is Struck Down

In American Booksellers Association v. Hudnut , the 7th U.S. Circuit Court of Appeals strikes down an Indianapolis anti-pornography law. The law had not used the court’s guidelines for deciding what is “obscene” material. The court finds that the law unconstitutionally targeted a certain viewpoint and allowed the government to decide which ideas are good or bad.

1986 Court: Student’s Lewd Speech Not Protected

In Bethel School District v. Fraser , the U.S. Supreme Court decides that a high school senior’s free speech right was not violated when he was disciplined for making a lewd speech at an assembly. Previously, in Tinker v. Des Moines Independent Community School District , the justices had said students do not “shed their constitutional rights” at the schoolhouse door. Chief Justice Warren E. Burger writes that schools can prohibit lewd speech because it is inconsistent with the “fundamental values of public school education.”

1988 Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier , the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1989 Court: Flag Burning Is Protected Symbolic Speech

In Texas v. Johnson , the U.S. Supreme Court rules that burning an American flag is protected symbolic speech. Gregory Lee Johnson burned the flag outside Dallas City Hall to protest Reagan administration policies. The justices find that his actions fall into the category of expressive conduct and have a political nature. Speech cannot be prohibited simply because an audience takes offense to certain ideas, the Court says.

1990 Flag Protection Act Ruled Unconstitutional

In U.S. v. Eichman , the U.S. Supreme Court decides that the 1989 Flag Protection Act is unconstitutional. The law provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon” any U.S. flag. The justices rule that the right to free expression supersedes protection of the flag as a national symbol. Justice William J. Brennan writes: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

1991 Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

1991 Son Of Sam Law Is Struck Down

The U.S. Supreme Court strikes down New York’s Son of Sam law aimed at preventing convicted criminals or those accused of crimes from profiting from the sale of any work discussing their crimes. In Simon & Schuster Inc. v. New York State Crime Victims Board , the Court says the law violates the First Amendment because it singles out earnings from speech or writing.

1992 Court Strikes Down Hate Crime Law

In R.A.V. v. The City of St. Paul , the U.S. Supreme Court reverses the juvenile conviction of a 14-year-old white boy who burned a cross on the lawn of an African American family. The boy was prosecuted under a law prohibiting the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” The Court finds that because the law punishes certain conduct only because of the ideas behind it – however offensive those ideas may be – it violates the First Amendment’s free speech clause.

1993 Justices Allow Tougher Hate Crime Penalties

In Wisconsin v. Mitchell , the U.S. Supreme Court upholds a Wisconsin law that increases the penalty for assault if the offender purposely picks his victim “because of the race, religion, color, disability, sexual orientation or national origin or ancestry of that person.” The Court rules that the increased penalty does not violate the offender’s free speech rights because the Wisconsin law is aimed at the offender’s actions.

1994 Justices Uphold Buffer Zones At Abortion Clinics

In Madsen v. Women’s Health Center , the U.S. Supreme Court affirms a Florida court’s ruling that abortion protesters could not demonstrate within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, or make loud noises within 300 feet of a clinic employee’s home. (These distance requirements are known as buffer zones.) Although the Court acknowledges that the ruling restricts the protesters’ speech, it finds the restrictions “necessary to serve a significant government interest” of providing needed health care.

1995 Communications Decency Act Passed

As part of the Telecommunications Act of 1996, Congress enacts the Communications Decency Act. The law is intended primarily to protect minors using the internet by criminalizing the placement of “obscene” and “patently offensive” material on the Web. The Communications Decency Act is almost immediately challenged by a diverse coalition of health-care providers, sex educators and pornographers on the grounds that the law violates the right to free speech.

1996 Child Pornography Prevention Act Passed

The Child Pornography Prevention Act expands the definition of child pornography – which, unlike most pornography involving adult subjects, does not enjoy First Amendment protection and can be criminalized – to include computer-generated depictions of children engaging in sexual activity. The act is challenged on First Amendment grounds by a variety of civil liberties and artistic groups.

1997 ‘Floating’ Buffer Zones At Clinics Struck Down

In Schenck v. Pro-Choice Network of Western New York , the U.S. Supreme Court upholds a 15-foot buffer zone around an abortion clinic’s entrances and driveways, but strikes down a “floating” buffer zone that requires protesters to stay 15 feet away from all cars and patients as they enter and exit the clinic. The Court finds that, in contrast to the “fixed” buffer zone around the clinic, the “floating” zone risks silencing protesters: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

1997 Equal Access For Military Recruiters Is Upheld

The Solomon Amendment requires institutions of higher education to provide military recruiters with the same access to students as other potential employers. If the school does not, it loses certain federal funds. Members of an association of law schools and law faculties wanted to restrict military recruiting because they objected to the military’s policy on LGBT+ recruits. The U.S. Supreme Court unanimously says that the Solomon Amendment does not place an unconstitutional condition on the receipt of federal funds. The Court says the First Amendment does not prevent Congress from directly imposing the equal access requirement because the Solomon Amendment limits conduct, not speech.

1997 Court Ruling Backs Free Speech On Internet

In Reno v. American Civil Liberties Union , the U.S. Supreme Court gives broad support to free speech on the Internet. The justices rule that the Communications Decency Act violates the First Amendment by criminalizing many kinds of material on the internet that are not obscene or offensive, such as medical information or artistic depictions of the human body.

1998 Court: Public TV Can Exclude Candidates

The U.S. Supreme Court decides that public television stations can exclude minor-party candidates from their debates as long as the decision is not based on the candidates’ views and the debates are not designed as public forums. The decision, in Arkansas Educational Television Commission v. Forbes , strikes down an appeals court ruling that a state-owned TV network is obliged under the First Amendment to allow any candidate who has qualified for the ballot access to a debate.

1998 Decency Test On Arts Grants Is Upheld

In National Endowment for the Arts v. Finley , the U.S. Supreme Court rules that the NEA, the government’s art-funding agency, can include “decency” standards among its criteria for awarding government grants for artists’ work without violating the First Amendment.

1999 Giuliani Targets Publicly Funded Art

Infuriated by a planned exhibit at the Brooklyn Museum of Art that features an image of the Virgin Mary decorated with elephant dung, New York City Mayor Rudy Giuliani threatens to cut all city funding to the museum, evict the museum from its building, and remove the Board of Directors. A subsequent First Amendment lawsuit between the museum and the city will be settled the following year, with the city agreeing to pay an additional $5.8 million in repairs to the museum over the next two years.

2000 Boy Scouts Can Bar LGBT+ Leaders

In Boy Scouts of America v. Dale , the U.S. Supreme Court says the Boy Scouts organization has the right to bar gay people from serving as troop leaders. Assistant scoutmaster James Dale contended that the Boy Scouts had violated a New Jersey statute banning discrimination on the basis of sexual orientation in places of public accommodation. The justices said the law violated the Boy Scouts’ First Amendment right to expressive association.

2000 Court Revisits ‘Floating’ Buffer Zones At Clinics

In Hill v. Colorado , the U.S. Supreme Court upholds a Colorado law that prohibits abortion protesters from “knowingly approaching” within eight feet of a person entering or exiting an abortion clinic. The Court says that, unlike the “floating” 15-foot buffer zone that it struck down in Schenck , the buffer zone in the Colorado law is small, so protesters are still able to exercise their free speech right.

2000 Children’s Internet Protection Act Passed

Congress passes the Children’s Internet Protection Act. The law requires public libraries that receive certain federal funds to use a portion of those funds to buy internet programs for their computer terminals to filter out material that is “harmful to minors.” The American Library Association and the ACLU both bring lawsuits challenging the law on First Amendment grounds.

2002 Ban On ‘Virtual’ Child Porn Struck Down

In Ashcroft v. Free Speech Coalition , the U.S. Supreme Court rules that the Child Pornography Prevention Act’s criminalization of computer-generated depictions of children engaging in sexual activity violates the First Amendment. The Court finds that the law goes further than existing child pornography laws (which ban material involving actual children) to potentially cover many kinds of images that are not pornographic.

2003 Law To Protect Children Passed

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or the PROTECT Act, includes numerous provisions intended to protect children from exploitation, kidnapping, and other crimes. It increases penalties for creating child pornography and strengthens penalties for “virtual” child pornography. Modern technology makes it easier for individuals to produce child pornography without involving “real” children. This law takes steps to prevent that practice. The law also encourages increased cooperation of internet service providers to report suspected child pornography.

2003 Court Rules On Cross-Burning Law

In Virginia v. Black , the U.S. Supreme Court rules that a law prohibiting cross burning could, in theory, be allowed under the First Amendment if it targets only cross burnings that are specifically “intended to intimidate.” Nevertheless, the Court strikes down the Virginia law because it outlaws all cross burnings, including those intended to express a political view.

2003 Law On Library Internet Filters Upheld

In United States v. American Library Association , the U.S. Supreme Court rules that the Children’s Internet Protection Act (CIPA) of 2000, requiring public libraries that receive certain federal funds to buy internet filters for their computers to weed out material that is “harmful to minors,” does not violate the First Amendment. The Court says that Congress has broad authority to attach restrictions to its funding, and that the CIPA restrictions are consistent with library rules that limit children’s access to only age-appropriate materials. The Court says that libraries are allowed to disable the “blocking” software for adults.

2003 Justices Uphold Campaign Finance Law

The Bipartisan Campaign Finance Reform Act of 2002, known as the McCain-Feingold Bill, is an effort to change the way money is raised and spent by political campaigns. Key parts are a ban on unrestricted (“soft money”) donations to political parties (often by corporations and unions) and restrictions on TV ads sponsored by unions, corporations and nonprofit groups up to 60 days before elections. The plaintiffs, including unlikely allies such as the National Rifle Association and the ACLU, say these provisions violate their rights to free speech and association. The U.S. Supreme Court upholds the provisions, finding that they are justified by the government’s interest in preventing corruption or the appearance of corruption that might result.

2004 Child Online Protection Act Struck Down

After the Child Online Protection Act became law, the ACLU sued to stop its enforcement, saying the law violated the right to free speech. The U.S. District Court and the Third U.S. Circuit Court of Appeals both agree with the ACLU. In 2002, however, the U.S. Supreme Court orders the Third Circuit to reevaluate the case, saying the decision was based on insufficient reasoning.

In 2003, the appeals court again finds the law unconstitutional, based on different grounds from the first ruling. The justices agree to rehear the case and, in Ashcroft v. American Civil Liberties Union , strike down the law. Justice Anthony Kennedy writes that children can be protected from inappropriate material by other, less restrictive ways and that the law could prevent adults from accessing information they have a right to view.

2004 Patriot Act Provision Ruled Unconstitutional

A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.

2006 Court Rejects Vermont Campaign Finance Law

Vermont’s Act 64 stringently limits the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute. In Randall v. Sorrell , the U.S. Supreme Court reaffirms its 1976 ruling in Buckley v. Valeo that rejected limits on how much candidates could spend on their own campaigns. Regarding Vermont’s contribution limits, the Court says they are so low that they pose a constitutional risk to the electoral process. Challengers may be unable to mount an effective challenge to better-financed incumbents.

2007 Court Strikes Down Ad Limits In Campaign Law

The U.S. Supreme Court creates an exemption to advertisement restrictions set out in the 2002 McCain-Feingold campaign finance law. In Federal Election Commission v. Wisconsin Right to Life , Chief Justice John G. Roberts Jr. writes that only ads that make specific appeals to vote for or against a candidate can be prohibited in the period covered by the law – 30 days before a primary election and 60 days before a general election. The Court says limits on TV ads sponsored by corporations or unions in that period amount to censorship of political speech, which is protected under the First Amendment.

2007 Justices Restrict Students’ Free Speech Right

In Morse v. Frederick , the U.S. Supreme Court affirms that free speech rights for public school students are not as extensive as those for adults. In this case, a student held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana use, at a school-supervised event across from the campus. The principal removed the banner and suspended the student for 10 days. The majority opinion says that although students have some right to political speech, it does not include pro-drug messages that may undermine the school’s mission to educate against illegal drug use.

2009 City’s Refusal Of Religious Monument Upheld

The U.S. Supreme Court decides unanimously in Pleasant Grove City v. Summum that a Utah city did not violate the Summum church’s free speech right by refusing a donation of a monument reflecting its beliefs. The church argued that the park, which had a Ten Commandments monument, was a public forum and that the city could not discriminate among speakers. The Court said permanent monuments were government speech and did not have the same free speech protection as speakers or leaflets in a public forum.

2010 Court Lifts Limits On Corporate Election Spending

In Citizens United v. FEC , the U.S. Supreme Court rules, 5-4, to remove limits on corporate spending on elections. Corporations and unions still cannot directly give money to federal candidates or national party committees. The majority opinion says the First Amendment right of free speech extended to corporations. The landmark decision overturns decades of rules that governed the campaign finance and sparked fears that a flood of money into politics would dramatically alter campaigns.

2010 Corporate Spending Limit Rejected

The U.S. Supreme Court decides, 5-4, in Citizens United v. Federal Election Commission , that the government cannot regulate political speech — political spending — by corporations in elections. “If the First Amendment has any force,” Justice Anthony M. Kennedy writes for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The dissenters warn of the consequences if a flood of corporate money is unleashed in elections. Justice John Paul Stevens says corporate speech should not be treated the same as that of people. The ruling overturns two precedents about the free speech rights of corporations: Austin v. Michigan Chamber of Commerce , a 1990 ruling that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission , a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

2011 First Amendment Protects Funeral Protests

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” Those are Chief Justice John G. Roberts Jr.’s words when the Supreme Court rules in Snyder v. Phelps that the First Amendment’s right to free speech protects hateful protests at military funerals. Members of the Westboro Baptist Church — which believes God is punishing the U.S. for its tolerance of homosexuality — had appeared at the funeral of a Marine who died in Iraq. Albert Snyder, the Marine’s father, sued the protesters for, among other things, intentional infliction of emotional distress. Roberts suggests that laws creating buffer zones around funerals would be a better response than punishing unpopular speech. He says that the nation’s commitment to free speech demands protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

2012 Person’s Right To Lie Is Protected

The U.S. Supreme Court strikes down the Stolen Valor Act, a federal law that made it illegal for individuals to claim to have won or to wear military medals or ribbons that they didn’t earn. The Court, in a 6-3 ruling, says that the First Amendment protects the right to lie about medals and military service. Justice Anthony M. Kennedy says freedom of speech “protects the speech we detest as well as the speech we embrace.” The government had argued that such lies “inhibit the government’s efforts to ensure that the armed services and the public perceive awards as going only to the most deserving few.”

2012 U.S. Can’t Require Graphic Warnings On Cigarette Packs

The U.S. Court of Appeals for the District of Columbia Circuit rules that the federal Food and Drug Administration cannot require tobacco companies to place large graphic health warnings on cigarette packages to show the effects of smoking. The appeals court upholds a lower court’s decision that the requirement violates the First Amendment’s free speech right. Some of the largest tobacco companies sued the government, arguing that the warnings were not just factual information but advocated against smoking.

2015 States May Limit Judicial Candidates’ Fund-Raising Requests

The U.S. Supreme Court rules, 5-4, in Williams-Yulee v. Florida Bar , No. 13-1499 that states may ban judicial candidates from personally asking their supporters for money. Twenty-nine other states also prohibit personal solicitations, which they say threaten the integrity of the judicial branch and public confidence in the system.

2015 Intent Cited in Online Threats Case

In a social media case, Elonis v. United States , the U.S. Supreme Court reverses the conviction of a Pennsylvania man who had used violent language against his wife on Facebook. The majority opinion says prosecutors failed to prove the defendant’s intent when he published threatening lyrics about his wife on Facebook. The decision makes it harder to prosecute people for threats made on social media.

2015 Court Says Texas May Reject License Plate Design

The U.S. Supreme Court decides in Walker v. Texas Division, Sons of Confederate Veterans, Inc. , 5-4, that Texas may refuse to make a specialty license plate with the Confederate flag. The Sons of Confederate Veterans sued the state when it refused to make such a plate. The group said its First Amendment right to free speech had been violated. The majority opinion says that because license plates “constitute government speech,” Texas could choose which designs to produce.

2015 Town Ordinance On Signs Struck Down

In Reed v. Town of Gilbert, Ariz., the U.S. Supreme Court unanimously strikes down a town law that treated a church’s signs differently from other signs, such as political ads. Unlike other signs, the church signs were limited in size and allowed to be in place for only a certain number of house. The majority opinion says that the town ordinance was based on the content of the sign’s message, which violates the First Amendment’s free speech right.

2019 Federal Ban on ‘Immoral,’ ‘Scandalous’ Trademarks Struck Down

The U.S. Supreme Court rules, 6-3, that the federal government’s ban on registering “immoral” and “scandalous” trademarks violates the First Amendment of the Constitution. The dissenters express concern that the majority opinion goes too far and that the trademark office would be forced to register trademarks containing “the most vulgar, profane, or obscene words and images imaginable.” In the case, Iancu v. Brunetti, a Los Angeles artist, Erik Brunetti, sued the government for refusing to register the trademark for his “subversive” clothing line.

2021 Court Backs Catholic Agency Over Refusal To Work With Same-Sex Couples

The U.S. Supreme Court sides with a Catholic foster care agency that was cut off by the City of Philadelphia from receiving foster care referrals because it refused to work with same-sex couples. The agency believes marriage is between a man and a woman. The Court unanimously rules in Fulton v. City of Philadelphia that the city was wrong to end its foster care contract with Catholic Social Services. Chief Justice John G. Roberts Jr., writing for six of the justices, said the city’s refusal to contract with the foster care agency unless it agreed to certify same-sex couples as foster parents violated the First Amendment.

2021 Court Sides With Cheerleader In Off-Campus Speech

The U.S. Supreme Court rules 8-1 in Mahony Area School District v. B.L. in favor of a Pennsylvania cheerleader who lost her place on the squad because of a profane off-campus rant posted on social media. Although the Court said the punishment violated her First Amendment right of free speech, it declined to say schools never have a role in disciplining students for off-campus speech.

2022 Censure of Politician Is Constitutional, High Court Says

The U.S. Supreme Court unanimously decides in House Community College System v. Wilson that elected bodies do not violate the First Amendment’s free speech clause when they censure a member. Justice Neil M. Gorsuch wrote: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”

2022 High Court Rules Against Boston On Christian Flag

The U.S. Supreme Court unanimously rules in Shurtleff v. City of Boston that the City of Boston violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall. One of three flagpoles is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags and rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The city’s refusal to let the group fly its flag based on its religious viewpoint violated the free speech clause of the First Amendment, the majority opinion said.

Related Resources

• Book: First Amendment (1791)
• Handout: Freedom of Speech: Finding the Limits
• Book: Chapter 6: The Right to Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
• Book: Chapter 8: The Latitude and Limits of Free Speech
• Book: Chapter 10: The Flag-Salute Cases
• Book: Chapter 18: Freedom of Speech in Public Schools

Freedom of Speech: Exploring Proper Limits Essay

The First Amendment of the U.S. Constitution runs, “Congress shall make no law….abridging the freedom of speech or of the press” (U.S. Constitution, as cited in Goshgarian, 2011, p. 183). Judging from this, free speech of campus should be an inherent privilege of each student who cares about educational matters. However, questions restricted to the so-called “politically correct” speech have recently come to the forth due to the rise of political view on the campus life in the United States.

On the one hand, proclaiming freedom of speech among students on campus can contradict the firmly fixed values and beliefs accepted in colleges and universities. On the other hand, students should be able to express their opinions about different issues that matter to them. In such a way, they can learn and introduce changes to those questions. In this respect, students should not be limited to expressing themselves as long as their speech is genuine, consistent, and transparent.

Students who join the life on campus consider it reasonable to freely discuss things that concern and appeal to them most of all. In this respect, they can learn about issues that interest them. Discussing things and problems publicly can contribute to recognizing problems within a campus and providing possible solutions to improving quality of education.

Analyzing matters connected to quality of delivering materials by instructors, discussing different learning and teaching techniques, and offering solutions to more effective scheduling of an academic curriculum should not be ignored by college administrators. Even more, this should be the core concern of each university/college.

In this respect, Downs (2006) mentions the philosophy of educational establishments, where “the function of the University is to seek and to transmit knowledge and to train student in the process whereby truth is to be made known” (p. 4). Therefore, each college/university should have deep faith in intelligence and knowledge and, therefore, it should be more concerned with the ways to improve transparency of considering questions that gave rise to intellectual development rather than to passionate exposition of beliefs and thoughts.

Restricted expression and limited possibilities for expressing thoughts and ideas does not contribute to developing and improving of norms and values to college activities. Students should openly discuss the issues and identify existing problems, especially when it comes to racial and sexual discrimination. In fact, there should be distinction between passionate and subjective assaults of sexual and racial minorities (Leo, 2011, p. 187).

For instance, explicit debates on sexual and gender oppression will not contradict the existing moral and ethical codes. On the contrary, it introduces clarity and enhances the importance of the critical issue. As an example, Donna Shalala, a counselor of the University of Wisconsin, proved to be a rigorous advocator of speech restrictions on campus. In fact, the established code was quite primitive because it spread nothing, but horror and ignorance among students (Leo, 2011, p. 190).

In this respect, discrimination can be the result of those restrictions because impossibility to explore the roots of the problem can prevent from solving speech problem in a transparent way. In contrast, an overt approach to expressing opinions can bring shifts to solving the challenging problems of racial, social, and gender discrimination. Ignorance of the problem can be the result of prohibition imposed on free speech on campus.

Restriction measures taken by educational establishments can make students fearful of freely expressing their positions and opinions concerning urgent issues. In this respect, many students may find it irrational to be interested in the social and political life on campus because it can have a negative impact on the academic process.

However, students should realize that free speech should not infer the struggle between several political parties, but provide an objective and unbiased representation of their ideological, political, and educational views on life in a college.

However, it is important to note that dishonest and biased representation of thought should be discouraged and controlled to avoid conflicts among students. Both liberal and conservative views should keep aside from students’ rights to express their thoughts and choose which part they should protect (Leo, 2011).

In particular, most importantly, universities should not underestimate the First Amendment of the U.S. Constitution, especially when educators apply to the law for their personal interests. As an example, Leo (2011) provides the case with Reebok, when the University signed a contract, promising not to express negative comments about the quality of footwear. This is the case when restricted freedom of speech negatively influences the policies and welfare of universities in whole.

In conclusion, students should have the right to express themselves freely unless it is a dishonest and subjective assault having no evidence. Students should be able to protect their rights and freedoms and apply to existing tools and laws supporting their positions. Therefore, while expressing themselves, they should be aware of the effects. More importantly, there should be a free speech should be independent of any political party, though students have the right to join either of political wings.

Downs, D. A. (2006). Restoring Free Speech and Liberty on Campus. UK: Cambridge University Press.

Goshgarian, G. (2011). What Matters in America. Canada: Pearson Education Canada.

Leo, J. (2011). Free Inquiry? Not on Campus. In G. Goshgarian (Ed.), What Matters in America. Canada: Pearson Education Canada, pp. 184-193.

• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2018, November 4). Freedom of Speech: Exploring Proper Limits. https://ivypanda.com/essays/freedom-of-speech-exploring-proper-limits/

"Freedom of Speech: Exploring Proper Limits." IvyPanda , 4 Nov. 2018, ivypanda.com/essays/freedom-of-speech-exploring-proper-limits/.

IvyPanda . (2018) 'Freedom of Speech: Exploring Proper Limits'. 4 November.

IvyPanda . 2018. "Freedom of Speech: Exploring Proper Limits." November 4, 2018. https://ivypanda.com/essays/freedom-of-speech-exploring-proper-limits/.

1. IvyPanda . "Freedom of Speech: Exploring Proper Limits." November 4, 2018. https://ivypanda.com/essays/freedom-of-speech-exploring-proper-limits/.

Bibliography

IvyPanda . "Freedom of Speech: Exploring Proper Limits." November 4, 2018. https://ivypanda.com/essays/freedom-of-speech-exploring-proper-limits/.

• How Disney Pixar Runs Their Films for Families?
• “What Will We Do When Coal Runs Out?” Documentary Analysis
• Simulink Broadens Video, Runs Simulations for Real-Time
• Interview Concerning Two Amok Runs
• “A River Runs Through It”: The Novella vs. The Movie Adaptation
• Freedom of Speech in Shouting Fire: Stories From the Edge of Free Speech
• India's Airline Industry Runs Into Turbulence: Jet Airways
• Government Amending the American Constitution
• "When The Money Runs Out" Article by Baird
• On the First Amendment to the U.S. Constitution
• Marxism will not return as a major ideology in the 21st century
• Capitalism Versus Communism
• Importance of Civic Engagement
• The concept of the organic state
• Fascism and Socialism: Conceptual Study

Are Limits on Freedom of Speech Ever Justified?

Example of introduction to freedom of speech essay.

Most people in democratic states emphasize that freedom of speech is a necessity. For example, the United Nations Declaration of Human Rights, the U.S. Bill of Rights, and the European Convention on Human Rights usually stipulate that freedom of speech is a fundamental human right. These documents usually underline that Congress is not supposed to make any law that respects the establishment of religion, abridge the freedom of speech or the press and redress the rights of people to resemble peacefully. Every person has freedom of opinion and expression (Sadurski 24). In this perspective, every person has the right to make their own opinions to make hold their own opinions without any form of interference. People also have the freedom to express their opinions or ideas through any media regardless of limits imposed.

Example of Body Paragraphs to Freedom of Speech Essay

The United Nations General Assembly Resolution stipulates that every person has the freedom to express their opinion. In this perspective, everyone has the right to hold opinions, receive or impart information without any form of interference from a public authority. In this perspective, states can broadcast television or cinema enterprises without the interference of public authority. However, the exercise of these freedoms is supposed to encompass certain duties and responsibilities. This is explained by the fact that they are subjected to formalities restrictions and penalties which are prescribed by the law of a democratic society.

These duties and responsibilities that are exercised in the freedom of speech are supposed to ensure that the interests of national security, public safety, protection of others rights, maintain the authority of the judiciary, prevent confidential information from being disclosed, prevention of a crime, and for the protection of morals (Sadurski 12). When people are not given the right to exercise their freedoms in a democratic society, they often become chaotic. In this perspective, therefore, governments in democratic states ensure that people are allowed to practice their democratic rights in their country. Hence, the goal of this paper is to discuss whether the limits of freedom of speech are ever justified.

Discussion of the Freedom of Speech Limitations

The limitations imposed on the freedom of speech can be justified by the presence of certain people who are often offended when it is used to mock certain people. For example, in places of work, there are people who engage in certain activities in order to mock certain people who they regard as inferior. In this perspective, therefore, it is important to note that even though people are engaged in certain activities to express your freedom of speech, it is important to ensure that they do not offend other people by relaying the message (Wayne 5).

People would not be in a position to ask brave questions against the government or the church if there is no freedom of speech. If people have full respect for their government or the church, they would always keep their mouth shut. The first amendment in the freedom of speech is aimed at preventing people from being persecuted for their own ideas. Many people have misused their freedom of speech in the past, thereby leading themselves to be prosecuted for their own ideas. However, if an idea violates the rights of a person, then it should not be allowed. In this case, it is not necessary for people to be beaten up or be disrespected just because certain people think that they do not have value in the world or because of their skin color (Sadurski 5). However, people should not do things that offend other people.

Every person should hold himself responsible for any speech that he directs to harm another person. For example, a person may issue a speech that may cause a slander or cause certain people in a room to panic. In this perspective, an issue arises on whether one would need to limit when any person has the ability to sue another for the damages caused (Alexander 43). However, one needs to understand that the law only gives criminal remedy to something that is treated as civil.

There are various groups that become as offensive as they can to certain conservative groups. In this perspective, they normally harass, picket, threaten or even boycott. From this perspective, they can feed any strong response by ensuring that they increase the power of the government. In this perspective, they would shift the media to be on their side, thereby making the story to favor them. On the other hand, most conservatives are usually regarded as meek and they always try in vain to make sense of the childish behavior that the liberal groups engage in (Wayne 6). In this case, the liberal groups usually abuse the rights of the conservatives by stipulating that the exercise of rights by the conservative group in an abuse of the rights of the liberal groups.

Therefore, in this perspective, the solution would not be to limit the freedom of speech through the government. In this case, one needs to stand up to the bullies and claim for individual rights. For example, in high school, the best way to defeat a bully is not to cry or run to the teacher. The best mechanism to cope with this situation is by ensuring that the offender is punished and not care whether bullies would also be punished by the school. Though the government has abdicated their rights to protect the rights of citizens, it has also been noted to be busy inventing entitlements which infringe the citizens’ real rights (Alexander 44). It is, therefore, important for citizens to ensure that they do not give in to the pressures by the government and fight for their real rights.

Client's Review

" I ordered a cheap essay on this website. Guys, I was so surprised the essay was written better than I thought it'd be. "

Sara J. reviewed EliteWritings on August 15, 2018, via SiteJabber Click to see the original review on an external website.

In an article where the Supreme Court ruled out that teachers and students do not shed their constitutional rights to freedom of speech at the schoolhouse gate, this state of affairs should be regarded as horrendous. This case can be attributed to the controversy that is observed in the books that teachers are allowed to give to their students. This also covers the extent to which the teachers are allowed to talk about books. In this perspective, most students are normally led to believe in concepts that are not fully correct. In this perspective, the teachers are normally not allowed to express their opinions on how they feel about such situations (Powers 56).

This mostly happens in elementary and high school levels of the system of education. In this case, the students do not realize that they are being given garbage information since they are not in a position to differentiate between what is right or wrong. In this perspective, therefore, one would argue that the limiting of free speech among teachers promotes false education to the students.

Therefore, it is clear that the Supreme Court tries to shield students from the real world. In this perspective, it is not right to treat students like uneducated people when they go to school to learn. It is important to ensure that the students are made to learn the truth. They need to understand that the world is not close to perfection. It is important to deliver to the students that the world today is characterized by issues such as fatalities and controversies. In this perspective, therefore, it is important for the government and Supreme Court to ensure that by limiting teachers the freedom of speech would not in any way to help the students (Powers 56). On the contrary, it will only harm the upcoming future generations. Therefore, it is evident that when people are limited in their freedom of speech, they become inefficient in terms of knowing what the real world entails.

In colleges, for example, the censorship of information is usually carried out by other students. Most of these forms of censorship do not take legal forms. Most forms of censorship are carried out with the aim of preventing the bad light of certain groups from reaching the bigger audience. Thefts of newspapers that publish articles that comprise offensive information by various segments of the student body have been known to take place at an alarming rate since the 1990s. For example, in April 2002, a thousand copies of Texas Christian University Newspapers were stolen (Nelson 23). This extreme event took place because of two controversial articles that were published in the newspaper. The articles that made the newspaper be stolen concerned information about fraternity hazing and the other reflected a situation where a player in the women’s basketball team was accused of stealing a teammates’ credit card.

It is also true that college newspaper staffs are not immune to self-censorship. Some of the advertisements that are regarded as being very controversial do not get published. For example, in spring 2001 a conservative columnist, David Horowitz, made an advertisement to 48 college newspapers across the U.S. The publication was entitled “Ten Reasons Why Reparations for Slavery are a Bad Idea.” In this case, only 14 college newspapers published the advertisement. However, several of the colleges that published the advertisement later apologized. In this perspective, it is evident that conservatives are not the only ones whose right to free speech is ignored (Nelson 25). There have been incidences when advertisements which stipulate that advertisement is not murder have also been ignored.

It is clear that issues on whether free speech can be justified are not only evident at the college level or high school level. From the examples, one can see that censorship is usually carried out for various reasons. Some of these reasons are often trivial, whereas others are personal or trivial. Political speeches normally get a lot of attention and they are, therefore, the key targets for censorship (Cram 45). The infringement of free speech in schools and outside the education environment remains a controversial issue. With regard to the issue of whether there should be limits to free speech, many authors still wonder whether free speech should be unrestricted completely.

Most forms of expression are normally harmless and, hence, protected by the right to freedom of expression. However, while seeking or receiving information from certain societies, it is important for one to understand that there are those societies that can tolerate various incitements such as murder or sale of pornography to children (Hare and Weinstein 5). However, it is important for one to understand that freedom of expression is not absolute and it can be limited whenever it is found to conflict with certain rights.

International law requires that the freedom of expression should be regarded as a rule. The limitations that should be imposed must be aimed at protecting the rights and reputations of other people, national security, public order, public health, and morals. Freedom of expression should not be limited in the case of a public official. In order for the freedom of speech to be limited, the law must be applied that is entrusted by the lawmakers. In this perspective, therefore, it is important for the regulation to meet various standards that can help clarify so that people can see the consequence of their actions (Hare and Weinstein 7). If the actions are worded in a vague manner and appear as unclear, they would not be treated as legitimate and, thus, the information should not be treated as controversial.

Now I know that your writers are indeed experts because they know how to carry out research just like my teachers expect me to do. I am thankful to your writers and online agents who always reply to my concerns. Jessica

I used a couple of other services, who only spoiled my grades. EliteWritings.com was like a savior in my life and I gradually improved my reputation. Josh

English writing is definitely not my strongest point and I always make silly mistakes. I surfed the web and found your company. You sent me a good paper with impressive ideas. I really appreciate your help. Anthony

Your writers are really competent and hard working. I’ve purchased a difficult research project and to my surprise – I got excellent! Thanks! Addison

Wonderful writing service and friendly writers who always communicate with customers! I realized that your company can be trusted when you sent me good papers within short deadlines. James

My writer forgot about a part of requirements, but I requested revision and he adjusted the needed part. I got the revised paper shortly and the paper looked just like I was expecting. Lily

I was afraid to buy midterm coursework from you, but I did not know how to deal with my topic in computer sciences. I got 93% for the project and was ecstatic. I will surely use your services more. Logan

I’ve bought some essays from you and you guys are wonderful! Your writers sent me amazing essays! Mia

I did not know about your company and my friend recommended me to order essays from you. Your writer sent me my essays on time and I did not find any mistakes! Abigail

I always forget how to use different citation styles and formatting remains challenging for me. I found out that your company offers cheap formatting services and I sent you the paper. Since that time, my teacher never deducts points for formatting mistakes. Alexander

I am a horrible writer and I would rather pass several tests than work on essays. I found your service and you guys are great! You offered me good discounts and I am pleased to get affordable papers. Cooperation with you is worth it. Zoe

Quick and good service! Olivia

I am so bad in writing that I thought I would fail every class. One of my friends told me to use your services and I could not believe my eyes. Your writers managed to improve my academic records very fast! Thank you. Samantha

I am so lucky! Your essays improved my reputation. Taylor

It is essential to have a legitimate aim so that the freedom of expression can be limited. For example, the limitation can be carried out in the case if it is aimed at respecting rights, protecting national security or sustaining public health, order or morals. In case if these conditions are not met, then no limitation should be imposed. Hence, it is true that any limitation to the freedom of expression should be truly necessary. This means that regardless of whether a limitation is in accordance with the law, it would only pass the test if it is regarded as truly necessary so as to help protect a legitimate aim. As a result, it is true that if a limitation is not needed then there is no need to impose it (Cram 24). In most cases when the international courts stipulate that national laws should not be impermissible to limitations, such limitations are not deemed to be necessary.

Example of Conclusion to Freedom of Speech Essay

To sum up, it is clear that even though people should be allowed to practice their freedom of speech there are certain issues when limitation should be imposed. There are certain cases when people are allowed to communicate freely, this can lead to issues such as ruin of a person’s reputation, cause national insecurity, as well as destabilize public order, health, and morals. Therefore, in this perspective, it is important to ensure that before limitations are imposed that the issue in question is needed. Hence, limiting freedom of speech is justified in certain occasions.

More About Persuasive Essay Writing

• What is the purpose of a persuasive essay ?
• How to write a persuasive essay ?
• What persuasive essay topics were good in 2016 ?
• How to choose good persuasive essay topics in 2020 ?

Free Persuasive Essay Examples from Elite Essay Writers

Argumentative, book report, environment, evidence-based practice, informative, please notice.

Some text in the modal.

An official website of the United States government

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

The site is secure. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

• Publications
• Account settings

Preview improvements coming to the PMC website in October 2024. Learn More or Try it out now .

• Advanced Search
• Journal List

Limits of Free Speech

Lord bhikhu parekh.

1 Department of Politics and International Affairs, University of Hull, Cottingham Rd, Hull, HU6 7RX UK

2 Department of Politics and International Affairs, University of Westminster, 309 Regent St, London, W1B 2UW UK

3 House of Lords, SW1 OPW, London, UK

Free speech is a great value and forms the life blood of a civilised society. It is however, one of several values and may sometimes come into conflict with them. In those cases it may need to be restricted. Hate speech is one such case and the author argues that it can and should be prohibited.

Professor Cohen-Almagor has written an excellent book, both timely and carefully argued. I agree with much of it and commend him for saying it. My disagreements are relatively minor and at two levels. First, while sharing his defence of free speech, I would like to strengthen it and give it a different philosophical orientation. Secondly, I would like to narrow and sharpen the concept of hate speech, my main concern, and give additional reasons for banning it to a greater degree than he does.

The importance of Free speech can hardly be exaggerated. It is the indispensable basis of free thought and critical self-consciousness. When it is denied or severely curtailed, the human capacity to think, and all that is distinctive to human beings, is undermined. At the most basic level, thought is inseparable from speech. Speech is objectified thought, and thought is articulated in speech and represents a form of speaking to oneself. When individuals externalize and express their thoughts and give them a worldly reality, they systematize and impose a measure of order on them, become clearer about their content, create a vitally necessary space or distance between themselves and their thoughts and feelings, and are able to reflect on them critically.

Free speech is the basis of a meaningful human life. It is through the medium of speech that individuals disclose themselves, appear before others, are recognized and affirmed by them, and acquire a sense of who they are. They communicate their thoughts and feelings, build bonds, construct shared memories, and create and sustain a rich and varied individual and collective life. When speech is drastically curtailed and subjected to all manner of constraints, human relations remain shallow and fragile, are marred by ignorance, misunderstanding, dishonesty, and falsehoods, and lack transparency and trust.

Free speech is just as vital in political life. It subjects citizens’ beliefs and opinions to critical scrutiny, assists the formation of an informed public opinion and collective will, provides the only effective check on the government, enables citizens to create a vibrant civil society, and in general ensures an easy and constant flow of ideas among citizens and between them and the government. Free speech is just as crucial to intellectual inquiries. It enables us to challenge inherited dogmas, critically examine different bodies of ideas, expand our range of intellectual and moral sympathy, and to secure a firmer grasp of the grounds of our beliefs and practices.

Although free speech is an important value, so are others such as human dignity, equality, freedom to live without harassment and intimidation, social harmony, mutual respect, and protection of one’s good name and honour. Because these values conflict, either inherently or in particular contexts, they need to be balanced. Although we may rightly privilege some of them over others either in general or in particular contexts, none can be so absolutized as always to trump others. Even social harmony and national security, which are vital to the very existence of society, do not override the demand of human dignity and dree speech, which is why we rightly refuse to sacrifice the latter even when faced with terrorist attacks. We want security and peace but not at all cost, and we do not wish to live in a society that can only be maintained by locking up everyone who arouses our suspicion or by subjecting convicted criminals to human and degrading punishment or torture. Every value makes claims that limit those of others, and every right is limited in its content and scope by other rights. This is as true of the right to free speech as of others, which is why it is subject to limits in all societies. The important question is whether prohibition of the expression and promotion of hatred should be one of these. Here I would be inclined to go further than Prof. Cohen-Almagor.

Hate speech stigmatizes the target group by ascribing to it qualities widely regarded as highly undesirable and presenting it as legitimate object of hostility. The target group cannot be trusted to be a loyal member of society which would be better off without it. Society may eliminate or expel it or discriminate against it and tolerate it as unavoidable evil. All forms of hate speech encourage and justify discrimination and breathe the spirit of violence.

Hate speech is objectionable for both intrinsic and instrumental reasons, for what it is or manifests and for what it does. It lowers the tone of public debate, coarsens the society’s moral sensibility, and weakens the culture of mutual respect that lies at the heart of a good society. It views members of the target group as an enemy within, refuses to accept them as legitimate and equal members of society, lowers their social standing, and in these and other ways subverts the very basis of a shared life. It creates barriers of mistrust and hostility between individuals and groups, plants fears, obstructs normal relations between them, and in general exercises a corrosive influence on the conduct of collective life. Hate speech also violates the dignity of the members of the target group by stigmatizing them, denying their capacity to live as responsible members of society, and ignoring their individuality by reducing them to uniform specimens of the relevant racial, ethnic, or religious group. When hate speech is allowed unrestricted expression, its target group is right to conclude that the state either shares the underlying sentiments or does not consider their dignity, self-respect, and well-being important enough to warrant action. In either case, the state forfeits its legitimacy in their eyes and weakens its claim to their loyalty.

Harte speech is also unacceptable because of its likely long-term consequences. It encourages a climate in which, over time, some groups come to be demonized and their discriminatory treatment is accepted as normal. Vicious and widespread hatred of a group does not spring up overnight. It builds up slowly, through isolated utterances and actions, each perhaps trivial individually but all cumulatively capable of coarsening the community’s sensibility. The violence implicit in hate speech then comes to the fore, initially in isolated incidents but gradually gathering a momentum of its own. If anything can be said about a group of persons with impunity, anything can also be done to it. A moral climate is created in which harm done to it is seen as right and proper and does not arouse a sense of outrage. It is not surprising that, with some exceptions, Europeans, who witnessed the rise of Fascism and Nazism and watched the case with which these movements created a racist climate should be some of the strongest advocates of the need for a timely ban on hate speech.

The argument that speech may be restricted only when there is an “imminent danger” of violence fails to probe further the idea of imminent danger. No action occurs in a historical vacuum, and every action produces consequences, not inherently but against a particular background. If a group came into existence urging people to kill all elderly parents or all beautiful women, its intended audience as well as well as its target group would think it was mad or joking and dismiss its utterances without a moment’s thought. But if it expressed similar sentiments about blacks, Jews, or gays, its statements could provoke those so inclined or their long-suffering victims, to resort to violence because of the deeply rooted prejudices against these groups. Imminent danger occurs against the background of, and is imminent because of, the prevailing social climate, and consistency demands that we concentrate our efforts not only on fighting the immediate source of danger, but also its long terms causes including the climate leading up to it.

Because hate speech is in unacceptable for these and related reasons, it has no place in a decent society and deserves to be discouraged. The difficult question is whether it should not merely be discouraged by moral and social pressure but also prohibited by law. Although law must be our last resort, its intervention in the print media or the internet cannot be ruled out for several important reasons. First assuming meaningful levels of enforcement and compliance, prohibition would reduce or eliminate speech that causes very real harm to the targets of such speech.

Second, prohibition legitimizes the state in the eyes of all citizens, reassures the currently targeted group as well as other members of society – for every one of them can under certain circumstances be a target – that the state values them all equally and is committed to protecting their fundamental interests. Third, such a law lays down norms of civility and sends out clear messages concerning what is or is not an acceptable way of talking about and treating other members of society. Being a collective and public statement of the community’s moral identity and guiding values, the law affirms and enforces these values, has a symbolic and educational significance, and helps shape the collective ethos. Finally, proscription of hate speech plays an important role in preventing political mobilization of hostility against particular groups. This is especially true if the limits are enacted before hate-based organizations have built up powerful networks and support and before their rhetoric has coarsened public stability.

It is argued that evil ideas are best defeated by subjecting them to a critical scrutiny and confronting them with better ideas, and that the answer to hate speech is not less but more speech. This argument, to which Prof. Cohen – Almagor shows some sympathy, makes a valid point but exaggerates it. It is true that respect for fellow human beings requires us to engage critically with their misguided but sincerely held beliefs, and that it is more effective in the long run to refute the basis of these beliefs than to supress their public expressions. There are, however, limits to this approach.

The market place of ideas, on whose competitive scrutiny and fairness this argument relies, is not neutral and does not provide level playing fields. It has biases and operates against the background of prevailing prejudices. When racist, anti-Semitic, and xenophobic beliefs are an integral part of a society’s culture, they appear self-evident, commonsensical, obvious and enjoy a built-in advantage over their opposites. Indeed the latter rarely get a hearing, and if they do, they tend to be dismissed out of hand. Furthermore, a fair competition between ideas requires that they all enjoy equal access to the marketplace, including the popular media and other agencies through which they are communicated. This is rarely the case.

Even assuming that the market is or can be made neutral and equally accessible to all bodies of ideas, it is naïve to imagine that false ideas will always lose out in their battle with true ones. Ideas do not operate in a social vacuum. They are bound up with interests, the prevailing structure of power, and so on, and the victory often goes to those that enjoy the patronage of powerful groups or prey on people’s fears and anxieties. Even as far as material products are concerned, competition does not ensure that quality triumphs over cheap and poorly made products. There is no reason to expect a different outcome at the level of ideas. This is not to deny the importance of marketplace of ideas, but rather to argue that, like the market in general, it needs to be subjected to certain regulatory controls, this is what the ban on hate speech does.

In this context I am a little troubled by Prof. Cohen - Almagor’s heavy reliance on the Millian Principle of interfering with an individual only when his or her utterances and actions threaten to cause harm to others, and his concomitant demand that we should show clearly who is harmed, how much, and so on, the kind of demand we make of a plaintiff in a court of law. First, it puts the onus not on the speaker but on his target group, and in so doing places the latter at disadvantage. It assumes that free speech is a privileged value and that anyone aiming to limit it must make a case for doing so. This is a questionable assumption and morally biased.

Second, harm is not easy to define, identify and prove. A relentless decline in the society’s climate of mutual respect is a case of serious harm, but it does not point to specific individuals. Again, racist remarks might undermine the self-confidence of a section of the target group, but lead its other members to overcompensate by excessive concentration on achievements in intellectual, financial and other areas. The latter is harmed because its choices are constrained and heteronomous not free, but it does not appear as a harm. Again, an isolated case of hate speech can be taken in one’s stride. But over time such remark create a climate that might be deeply offensive and unacceptable. At what point did the harm begin and where should we draw the line? Not easy to determine. Professor Cohen-Alamgor is right to insist that exaggerated and ill-focused remarks about harm should not be made the basis of actions on the internet or elsewhere, but the opposite extreme of requiring a fairly precise casual connection between a particular form of hate speech and a particular kind of harm would not do either.

• About About IWF The Women of IWF Champion Women Board of Directors Join Our Team Fellowship Program Affiliated Websites Code of Ethics Shop Media Requests Member Login
• Policy Center Center for Economic Opportunity Center for Energy and Conservation Education Freedom Center Independent Women's Law Center
• Programs She Thinks Podcast High Noon Podcast Bespoke Podcast At The Bar Students Over Systems Event
• Real Stories Women's Prisons Stories Identity Crisis Stories Female Athlete Stories Dissident Stories Stand With Women Stories ESA Stories Kids First Stories Healthcare Price Transparency Stories Chasing Work Stories
• Economy Government Spending Jobs Mobility Regulations Socialism Taxes
• Culture Community Family Feminism Media & Entertainment Personal Freedom Political Correctness Sex & Gender
• Health Costs & Accessiblity Drugs Health Care Wellness
• Environment Conservation Progress
• Innovation Agriculture Safety Tech
• Education Higher Ed K-12 School Choice Title-IX Transparency Divisive Ideology
• Law 1st Amendment Administrative State Civil Justice Reform Criminal Justice Reform Electoral College Judiciary Sex Discrimination
• Security Foreign Affairs United Nations Immigration National Defense
• Work Career Advice Child Care ERA Gender Quotas Harassment Paid Leave Wage Gap

Anti-Israel Protest At Georgetown Law Tests Limits Of Free Speech

1st Amendment

As I left Georgetown Law School’s campus recently, dozens of police and security officers were stationed around McDonough Hall. Inside, Rudy Rochman, a peace activist and reservist in the Israeli military, was about to speak to students about combating antisemitism.

What happened next is now viral. Protesters demonstrated against the event, trying to interrupt the talk from outside the room before entering holding “IDF Off Campus” signs. One student raised her “blood” painted hands, which looked like a recreation of an anti-Israeli attack in Ramallah. As student Rachel Wolff  described , protesters were “dress[ing] up like Jew-lynching terrorists who proudly display Jewish blood on their hands to celebrate their deaths.”

The situation highlights the inadequacy of the current campus speech paradigm to address a new form of disruption. In this case, students were able to harass their peers and impose on the free speech of others under the guise of silent protesting. 

Faculty who attended the event found no free speech violations because the in-room demonstration was ostensibly short and quiet. If judged solely by the loudness or brashness of the incidents that occurred at  Stanford  University and other law schools, and only by what occurred inside the room, then the protest is perhaps in a gray area. But that’s only part of the story.

Musician Aaron Holder, who attended with Rochman, documented on his Instagram story that protesters were consciously trying to be as loud and disruptive as possible from outside the room while the event was going on. He filmed from the back of the room during the event, where audible screams could be heard coming from outside. Other students also reported hearing loud shouting that drowned out the speaker.

While Rochman was still presenting, Holder went outside and recorded a protester screaming into a bullhorn: “Do you want the ‘IOF’ [Israel Occupation Force] sniper in that room to hear you? You can be louder. He can hear you better.” She continued by chanting “Who’s campus?” to which the crowd retorted, “Our campus!”

Not Just Decibel Level

Even though the chants were loud enough for many attendees to hear inside, campus free speech policies should not solely consider decibel level. The better question is whether anti-speaker activity is intended to, and does, shut out speech. While the Georgetown protesters did not enter the room and shout down the speaker like Stanford students did to Judge Stuart Kyle Duncan, they still managed to push the limits of permissible conduct to achieve the most disruptive effect possible. Their actions conflict with the ultimate goal of campus free speech policies — to allow speakers to be heard and to promote the free exchange of ideas.

That is, the protest speech that ought to be welcomed on campus is different from what students displayed on Thursday night. Students should be protected when they challenge one speaker’s ideas with other, contrary ideas, no matter how unpopular. But there’s a difference between policies that permit and protect a wide range of views and policies that allow protesters to menacingly and intentionally overtake another speaker.

Moreover, campuses should separately consider whether and when particularly outrageous protests become harassment. This should continue to be a high standard so speech that is merely insulting or controversial is not unfairly punished.

Here, it is necessary to question whether the conduct was harassment because it was targeted at my Israeli and Jewish peers. Protesters were intent on disrupting the event from the outside. They came into the classroom to intimidate with “bloody” hands and “IDF Off Campus” signs, even though mandatory military service is required of Israelis — and some in the audience were called to service. This is very different from a student who claims that an opposing viewpoint offends their identity without any justification. As thousands on X have pointed out, the severity of the conduct should at least warrant review.

In reality, this protest wasn’t quiet. It attempted to silence without incurring consequences and to intimidate while disguising itself as free speech.

Subscribe to IWLC's monthly newsletter: First Monday

• Name * First Last
• Comments This field is for validation purposes and should be left unchanged.

Biden Can’t Help Himself: Insults Blacks Again

Patrice onwuka | $(document).ready( function() { // or shorthand of $( function () { $.each($(".latest-author"), function(index, value ) { if($( this ).text().indexof("’") >= 0){ $author_name = $( this ).text(); $new_text = $author_name.replace("’", "'"); $( this ).text($new_text); } }); }); op-ed, journalists need a shield against government snooping, rachel chiu | $(document).ready( function() { // or shorthand of $( function () { $.each($(".latest-author"), function(index, value ) { if($( this ).text().indexof("’") >= 0){ $author_name = $( this ).text(); $new_text = $author_name.replace("’", "'"); $( this ).text($new_text); } }); }); op-ed, don’t get numb to the national debt numbers, eleanor bartow | $(document).ready( function() { // or shorthand of $( function () { $.each($(".latest-author"), function(index, value ) { if($( this ).text().indexof("’") >= 0){ $author_name = $( this ).text(); $new_text = $author_name.replace("’", "'"); $( this ).text($new_text); } }); }); op-ed, progressive censors are hell-bent on alienating women, hadley heath manning | $(document).ready( function() { // or shorthand of $( function () { $.each($(".latest-author"), function(index, value ) { if($( this ).text().indexof("’") >= 0){ $author_name = $( this ).text(); $new_text = $author_name.replace("’", "'"); $( this ).text($new_text); } }); }); op-ed, sign up for updates.

• Cell (optional)
• Become a Mobile Insider. Text WOMAN to 40442 to opt in. Sign up for recurring informational messages from IWF. Msg&data rates may apply. Terms & Privacy Policy.

• Share full article

For more audio journalism and storytelling, download New York Times Audio , a new iOS app available for news subscribers.

• April 7, 2024 The Sunday Read: ‘What Deathbed Visions Teach Us About Living’
• April 5, 2024   •   29:11 An Engineering Experiment to Cool the Earth
• April 4, 2024   •   32:37 Israel’s Deadly Airstrike on the World Central Kitchen
• April 3, 2024   •   27:42 The Accidental Tax Cutter in Chief
• April 2, 2024   •   29:32 Kids Are Missing School at an Alarming Rate
• April 1, 2024   •   36:14 Ronna McDaniel, TV News and the Trump Problem
• March 29, 2024   •   48:42 Hamas Took Her, and Still Has Her Husband
• March 28, 2024   •   33:40 The Newest Tech Start-Up Billionaire? Donald Trump.
• March 27, 2024   •   28:06 Democrats’ Plan to Save the Republican House Speaker
• March 26, 2024   •   29:13 The United States vs. the iPhone
• March 25, 2024   •   25:59 A Terrorist Attack in Russia
• March 24, 2024   •   21:39 The Sunday Read: ‘My Goldendoodle Spent a Week at Some Luxury Dog ‘Hotels.’ I Tagged Along.’

The Sunday Read: ‘What Deathbed Visions Teach Us About Living’

Researchers are documenting a phenomenon that seems to help the dying, as well as those they leave behind..

By Phoebe Zerwick

Read by Samantha Desz

Produced by Jack D’Isidoro and Aaron Esposito

Narration produced by Anna Diamond and Emma Kehlbeck

Original music by Aaron Esposito

Engineered by Sophia Lanman and Sharon Kearney

Listen and follow The Daily Apple Podcasts | Spotify

Chris Kerr was 12 when he first observed a deathbed vision. His memory of that summer in 1974 is blurred, but not the sense of mystery he felt at the bedside of his dying father. Throughout Kerr’s childhood in Toronto, his father, a surgeon, was too busy to spend much time with his son, except for an annual fishing trip they took, just the two of them, to the Canadian wilderness. Gaunt and weakened by cancer at 42, his father reached for the buttons on Kerr’s shirt, fiddled with them and said something about getting ready to catch the plane to their cabin in the woods. “I knew intuitively, I knew wherever he was, must be a good place because we were going fishing,” Kerr told me.

Kerr now calls what he witnessed an end-of-life vision. His father wasn’t delusional, he believes. His mind was taking him to a time and place where he and his son could be together, in the wilds of northern Canada.

Kerr followed his father into medicine, and in the last 10 years he has hired a permanent research team that expanded studies on deathbed visions to include interviews with patients receiving hospice care at home and with their families, deepening researchers’ understanding of the variety and profundity of these visions.

There are a lot of ways to listen to ‘The Daily.’ Here’s how.

We want to hear from you. Tune in, and tell us what you think. Email us at [email protected] . Follow Michael Barbaro on X: @mikiebarb . And if you’re interested in advertising with The Daily, write to us at [email protected] .

Additional production for The Sunday Read was contributed by Isabella Anderson, Anna Diamond, Sarah Diamond, Elena Hecht, Emma Kehlbeck, Tanya Pérez and Krish Seenivasan.

Advertisement