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107 Freedom of Speech Essay Topic Ideas & Examples

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Freedom of speech is a fundamental right that is enshrined in many democratic societies around the world. It allows individuals to express their opinions, beliefs, and ideas without fear of censorship or retaliation. However, with this freedom comes great responsibility. In order to ensure that freedom of speech is protected and preserved, it is important to engage in thoughtful and respectful discourse.

To help spark ideas for essays on freedom of speech, here are 107 topic ideas and examples to consider:

• The importance of freedom of speech in a democratic society
• The role of social media in shaping contemporary debates on freedom of speech
• The limits of freedom of speech in cases of hate speech
• The impact of political correctness on freedom of speech
• The role of universities in protecting freedom of speech on campus
• The tension between freedom of speech and national security concerns
• The relationship between freedom of speech and freedom of the press
• The impact of cancel culture on freedom of speech
• The role of technology in expanding the reach of freedom of speech
• The history of freedom of speech in the United States
• The role of the Supreme Court in defining the boundaries of freedom of speech
• The impact of social movements on expanding freedom of speech rights
• The relationship between freedom of speech and intellectual diversity
• The role of satire in challenging societal norms and promoting freedom of speech
• The impact of laws restricting freedom of speech in authoritarian regimes
• The role of public opinion in shaping debates on freedom of speech
• The impact of hate speech laws on freedom of speech
• The relationship between freedom of speech and artistic expression
• The role of whistleblowers in challenging government censorship and promoting freedom of speech
• The impact of corporate censorship on freedom of speech
• The relationship between freedom of speech and academic freedom
• The impact of online harassment on freedom of speech
• The role of the media in promoting freedom of speech
• The impact of government surveillance on freedom of speech
• The relationship between freedom of speech and privacy rights
• The impact of social media algorithms on freedom of speech
• The role of public protests in advocating for freedom of speech rights
• The impact of defamation laws on freedom of speech
• The relationship between freedom of speech and religious freedom
• The role of international organizations in promoting freedom of speech rights
• The impact of corporate influence on freedom of speech
• The role of whistleblowers in challenging

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
• Knight First Amendment Institute at Columbia University
• van Mill, David, “Freedom of Speech”, Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2023/entries/freedom-speech/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy – see the version history .]

ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

Acknowledgments

I am grateful to the editors and anonymous referees of this Encyclopedia for helpful feedback. I am greatly indebted to Robert Mark Simpson for many incisive suggestions, which substantially improved the entry. This entry was written while on a fellowship funded by UK Research & Innovation (grant reference MR/V025600/1); I am thankful to UKRI for the support.

Copyright © 2024 by Jeffrey W. Howard < jeffrey . howard @ ucl . ac . uk >

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Home — Essay Samples — Social Issues — Freedom of Speech — Why Freedom of Speech is Important

Why Freedom of Speech is Important

• Categories: Freedom of Speech

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Published: Sep 7, 2023

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Introduction, protection of democracy, promotion of civic engagement, protection of human rights, promotion of social justice.

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• Essay on Freedom of Speech in English Free PDF download

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

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

Long Essay on Freedom of Speech

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

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

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

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

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

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

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

Short Essay on Freedom of Speech

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

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

Key Highlights of the Essay - Freedom of Speech

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

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

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

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

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

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

1. Mention five lines for Freedom of Speech Essay?

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

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

iii) Freedom of speech is never absolute in nature.

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

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

2. Explain Freedom of Speech?

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

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

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

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

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

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

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

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

6. What is Freedom of Speech?

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

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

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

8. Is Freedom of Speech absolute?

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

Supreme Court Wary of States’ Bid to Limit Federal Contact With Social Media Companies

A majority of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

• Share full article

Adam Liptak

Reporting from Washington

Here’s the latest on the First Amendment case.

A majority of the Supreme Court seemed wary on Monday of a bid by two Republican-led states to limit the Biden administration’s interactions with social media companies, with several justices questioning the states’ legal theories and factual assertions.

Most of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

The dispute was the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage are, they said, part of a valuable dialogue that is not prohibited by the First Amendment.

Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested that a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.

“I don’t see a single item in your briefs that would satisfy our normal tests,” Justice Kagan told J. Benjamin Aguiñaga, Louisiana’s solicitor general.

Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told Mr. Aguiñaga. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.”

Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”

The justices peppered Mr. Aguiñaga with hypothetical questions about national security, doxxing of public officials and contests that could endanger teenagers, all suggesting that there is a role for vigorous efforts by the government to combat harmful speech.

Justice Samuel A. Alito Jr., the member of the court who appeared most sympathetic to the states’ position, urged his colleagues to remain focused on the case before them.

“Whatever coercion means,” he said, “whatever happened here is sufficient.”

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions .

The Supreme Court put that injunction on hold last year while it considered the administration’s appeal. If it were to go into effect, said Brian H. Fletcher, a lawyer for the government, it would prohibit all sorts of speech, including public comments from the press secretary or other senior officials seeking to discourage posts harmful to children or conveying antisemitic or Islamophobic messages.

He added that the social media companies had been moderating content on their platforms long before they were contacted by officials, had powerful business incentives to do so and were following their own policies. The companies acted independently of the government, he said, and often rejected requests to take down postings.

“These were sophisticated parties,” he said. “They routinely said no to the government. They weren’t open about it. They didn’t hesitate to do it. And when they said no to the government, the government never engaged in any sort of retaliation.”

Justice Alito said the volume and intensity of the contacts were troubling, as was the suggestion in some of them that the government and the platforms were partners in an effort to combat misinformation about the pandemic.

Mr. Fletcher responded that the messages had to be understood “in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic” at “a time when thousands of Americans were still dying every week.” The platforms, he added, acknowledged “a responsibility to give people accurate information.”

Mr. Aguiñaga presented a different picture of the relationship between the government and the platforms.

“Behind closed doors, the government badgers the platforms 24/7,” he said. “It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options.”

“Under this onslaught,” he added, “the platforms routinely cave.”

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

A second argument on Monday posed a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association. The justices appeared to be favoring the gun rights group.

The states in Monday’s first case, Murthy v. Missouri, No. 23-411, did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation.

The panel, in an unsigned opinion , said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.

The Biden administration filed an emergency application in September asking the Supreme Court to pause the injunction, saying that the government was entitled to express its views and to try to persuade others to take action.

The court granted the administration’s application , put the Fifth Circuit’s ruling on hold and agreed to hear the case.

Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Alito wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

Those same three justices voiced the most skepticism of the Biden administration’s position at Monday’s argument.

Other justices asked about government interactions with the press. Justice Kavanaugh, who served in the White House in the administration of President George W. Bush, said that it was “probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that it’s going to harm the war effort and put Americans at risk.”

That was perfectly proper, he suggested, adding that it would be a different matter if the request were backed by a threat of an antitrust action.

Justice Kavanaugh said he understood, based on his earlier government service, that there are “experienced government press people throughout the federal government who regularly call up the media and berate them.”

Justice Kagan echoed the point.

“Like Justice Kavanaugh,” she said, “I’ve had some experience encouraging the press to suppress their own speech.”

She sketched out some of those conversations: “You just wrote a bad editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.”

“I mean,” she said, “this happens literally thousands of times a day in the federal government.”

Chief Justice John G. Roberts Jr., another former White House lawyer, registered a lighthearted dissent, to laughter. “I have no experience coercing anybody,” he said.

But he added that the government is not monolithic and that different parts of it may hold and press competing views.

Justice Alito, who has been the subject of critical news coverage, seemed taken by the idea of pushing back against it, wondering aloud whether the court’s public information officer was in the courtroom.

“Maybe she should take a note about this,” he said. “So whenever they write something that we don’t like, she can call them up and curse them out and say ‘Why don’t we be partners? We’re on the same team.’”

What happens next? The court will probably not issue a decision until June.

Now that the arguments in the case are complete, the justices will cast tentative votes at a private conference in the coming days. The senior justice in the majority will then assign the majority opinion to a colleague — or keep it. Draft opinions, most likely including concurrences and dissents, will be prepared and exchanged.

On average, it takes the Supreme Court about three months after an argument to issue a decision. But rulings in a term’s more important cases — and this one qualifies — tend not to arrive until near the end of the term in June, no matter how early they were argued.

There are other reasons to think the decision will not arrive until late June. The case was argued in the court’s next-to-last two-week sitting, and the court will be busy this month and next with arguments on abortion and former President Donald J. Trump’s claim that he is immune from prosecution on charges that he plotted to overturn the 2020 election.

The decision must also be harmonized with rulings in related cases, including ones on whether states may prohibit technology platforms from deleting posts based on the viewpoints they express and whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

Scholars have given varied explanations for why the biggest cases tend to land in June, no matter when they were argued. One is that justices keep polishing the opinions that will define their legacies until the last possible moment.

A 2015 study in The Duke Law Journal suggested a more personal reason: “The justices, most of whom have busy social schedules in Washington, may want to avoid tensions at their social functions by clustering the most controversial cases in the last week or two of the term — that is, just before they leave Washington for their summer recess.”

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The court is hearing a related case on the N.R.A.

The question in the social media case is in one sense about government power over the internet. But at bottom it is about something more fundamental: striking the right balance between government advocacy for its policies, which is permissible, and coercion backed by threats of punishment, which is not.

The justices will return to that tension in Monday’s second argument, over whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association after the 2018 school shooting in Parkland, Fla.

That question is at a general level the same as the one in the social media case, and its answer will also involve finding the constitutional line between persuasion and coercion.

The second case, National Rifle Association v. Vullo, No. 22-842, concerns the activities of Maria Vullo, a former superintendent of the New York State Department of Financial Services. In the aftermath of the school shooting in Parkland, Ms. Vullo said banks and insurance companies should consider whether they wanted to provide services to the group.

The N.R.A. sued, saying Ms. Vullo’s efforts leveraged government power in a way that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, ruled against the N.R.A. Judge Denny Chin , writing for the panel, acknowledged that government officials may not “use their regulatory powers to coerce individuals or entities into refraining from protected speech.

“At the same time, however,” he wrote, “government officials have a right — indeed, a duty — to address issues of public concern.”

Ms. Vullo’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate.”

In its petition seeking Supreme Court review , the N.R.A. said the appeals court’s ruling could have sweeping consequences.

“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents — from gun-rights groups to abortion-rights groups to environmentalist groups and beyond,” the petition said.

One sign that the N.R.A. has a plausible First Amendment argument: It is represented by the American Civil Liberties Union . David Cole, the A.C.L.U.’s national legal director, will argue the case on behalf of the gun rights group.

“In this hyper-polarized environment, where few are willing to cross the aisle on anything,” Mr. Cole said, “the fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free-speech principle at stake.”

Charlie Savage

Oral arguments in the case are over.

Fletcher, the Justice Department lawyer, is now back for rebuttal.

Jim Rutenberg

Justice Jackson asks Aguiñaga whether government can’t move against harm, like posts that might lead teens to commit suicide, and can’t tell the platforms to move to reduce the posts. Aguiñaga says the government can call platforms to say there’s a problem, but can’t apply pressure to remove that content.

“Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” “Your honor, the government absolutely can use the pulpit to say publicly, here’s what we recognize to be a public health issue, emergency. We this is obviously extremely terrible and the public shouldn’t tolerate this. Platforms — we see it’s going on on the platforms — but they can’t call the platforms and say, listen, we really think you should be taking this down because look at the problems that it’s causing.” “If it’s protected speech, your honor, then I think we get closer. But like, look, if you think that that’s if that’s clearly the way you’re asking the question, I understand that the instinct that that may, you know, may not be a First Amendment issue. I guess what I fall back on, your honor, is that at least where the government itself — there is no emergency like this. There’s nothing —” “No, my hypothetical is there is an emergency. My hypothetical is that there is an emergency, and I guess I’m asking you in that circumstance, can the government call the platforms and say this information that you are putting up on your platform is creating a serious public health emergency? We are encouraging you to take it down.” “I was with you right until that last comment, your honor. I think they absolutely can call and say this is a problem. It’s going rampant on your platforms. But the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third-party speech rights.”

Justice Ketanji Brown Jackson asks if the government could actually tell platforms they needed to take down leaked classified information. Aguiñaga, the Louisiana lawyer, says the government could do that. “I think that would be a great example where strict scrutiny would be in the government’s favor.”

“Part of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you’re not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so. And so that’s why I keep coming back to the actual underlying First Amendment issue, which we can isolate in this case and just talk about about coercion. But I think that you have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down. I mean, what about what about the hypo of someone posting classified information? They say it’s my free speech right. I believe that, you know, I got access to this information and I want to post it. Are you suggesting that the government couldn’t say to the platforms, we need to take that down?” “No, your honor, because I think that would be a great example where strict scrutiny would cut in the government’s favor.”

Heightening the problem of the flawed factual record undergirding the litigation, Justice Sotomayor starkly accuses Aguiñaga himself of distorting facts of what happened: “I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to — at least in one of the defendants, it was her brother that something happened to, not her. I don’t know what to make of all this because I am not sure how we get to prove direct injury in any way.”

Aguiñaga apologizes if any of the brief is not “as forthcoming” as it should have been.

This exchange between Justice Kagan and Aguiñaga, in which the Louisiana lawyer concedes that it can be OK for the government to provide information to the platforms under some circumstances, shows the problem with having an unreliable factual record compiled by Judge Doughty about what actually happened. Fletcher is citing the district court’s findings to say the government crossed the line into official censorship, but are the specifics accurate?

Aguiñaga goes at a key issue in the government content moderation efforts of the past few years — what began as attempts to address foreign meddling and disinformation moved to cover speech from Americans in 2020, over an election and a pandemic.

In an exchange with Justice Kagan, Aguiñaga, the Louisiana lawyer, identifies a difference from the hypothetical Justice Kavanaugh brought up about government officials raising concerns with a newspaper about publishing an article: That is the government going directly to the speaker. What is “so pernicious” here is that the government is going to a third party — the platforms — and people may never learn about it.

Steven Lee Myers

Aguiñaga describes the communications between officials and the platforms as “unrelenting government pressure” going on outside of the public eye. “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully.”

The justices and Fletcher keep referencing a 1963 precedent, Bantam Books, Inc. v. Sullivan . It centered on a state commission in Rhode Island that was empowered to notify distributors of certain books and magazines it considered to be obscene that it had decided the materials were objectionable, request its “cooperation,” and to advise them that the commission had a duty to recommend prosecution of purveyors of obscenity. The Supreme Court ruled that these notices intimidated businesses and resulted in the suppression of the sale of the books and magazines --- an unconstitutional system of informal censorship.

Aguiñaga disputes the Biden administration’s standard for the case: “We don’t need coercion as a theory,” he said. He said the government “cannot induce, encourage or promote” to get private actors to do what government cannot: censor Americans’ speech.

Benjamin Aguiñaga, the solicitor general of Louisiana, is now arguing. Louisiana is one of the Republican-controlled states that brought the lawsuit arguing that the government was coercing social media platforms into taking down posts, amounting to government censorship.

Justice Kavanaugh, a former lawyer in George W. Bush's White House, raises a national-security analogy. He notes that it’s “not uncommon” for government officials to protest to a newspaper an upcoming story on surveillance or detention policy and say, “If you run that, it is going to harm the war effort and put Americans at risk.” The implication is under the lower-court rulings, the government would not be allowed to express such concerns.

Fletcher, the government lawyer, agrees with Justice Kavanaugh that that is an example of a valuable interchange as long as it stays on the persuasion side of the line. “Platforms — newspapers — want to know if their publishing a story might put lives at risk. And they don’t have to listen to the government, but that’s information that they can consider when exercising their editorial judgment.”

Justice Kavanaugh adds that it would become problematic coercion if the government tacked on that “And if you publish the story we’re going to pursue antitrust action against you.” Fletcher agrees again with him: “Huge problem, yeah.”

Fletcher argues that the social media platforms are large companies with sufficient clout to rebuff government efforts to influence them. In fact, when university researchers working with the government flagged misinformation about the 2020 election, the platforms refused to do anything two-thirds of the time .

Justice Kavanaugh pivots back to the Biden “killing people” line and notes that in a national security context there is some history of the government warning media outlets that their stories threaten to endanger Americans’ lives.

Justice Kagan floated the idea of resolving the case by saying the plaintiffs were not entitled to an injunction because they could not show they faced an imminent threat of future harm at the time of litigation, without getting into past content moderation disputes. Fletcher, the government lawyer, agrees that would be the narrowest and easiest way to resolve the matter.

Fletcher, the government lawyer, argues that government officials can persuade a private party to do something the private party is lawfully allowed to do, even when the government could not do that thing itself. He gives various examples: when government officials called on colleges to do more about antisemitic speech on campuses after the Oct. 7 attacks in Israel, encouraging parents to monitor their children’s cell phone usages, or internet companies to watch out for child sexual abuse on their platforms, even if the Fourth Amendment would prevent the government from doing that directly. Telling social media companies that the government thinks their algorithms or posting of certain things are causing harm is the same, he said.

Here’s the moment Justice Gorsuch was referring to regarding the president’s “killing people” line.

Justice Gorsuch asks if President Biden’s statement that the platforms were “killing people” by allowing misinformation to flow in the middle of the pandemic would amount to coercion. Fletcher says the president made clear afterward it was “exhortation, not threat.”

Alito is saying he can’t imagine the federal government cajoling and threatening print media. Fletcher notes that there is that sort of back and forth with the press, but Alito is getting at the central unsettled element in all of these cases. The platforms are something different, they provide pipelines, but through their algorithms and rules they are also applying their own version of editorial standards.

Justice Alito just demonstrated that he has bought into the misinformation in the lower court’s work, citing an example where a White House official said in an email to Facebook. “I want an answer on what happened here and I want it today.” In reality that (inappropriate) language was about getting a technical problem fixed with the presidential Instagram account, not about content moderation.

When Fletcher, the government lawyer, points out that the example Alito cited as happening repeatedly actually only happened once and had nothing to do with content moderation, Alito blows past the demonstration of his misunderstanding. “OK, well, put that aside. There’s all the rest.”

Fletcher raised an issue that some experts and research organizations involved in the case have: that many of communications cited in the lower courts included disputed facts, including quotations taken out of context.

Terry A. Doughty, the Trump-appointed district court judge who set the case off (after the Republican plaintiffs filed it in a place that would ensure he got the case) issued a ruling that has itself been criticized as being riddled with misinformation and conspiracy theories about what happened, setting up an unreliable factual record for the constitutional issues at play.

Here’s a recent item on the Just Security website that catalogs many ways Doughty torqued the facts to play into right-wing culture war notions — for example, falsely editing a quote in an email to Dr. Anthony Fauci to remove the word “published” before the words “take down” in a way that made it look like a scientist was urging steps to remove misinformation about vaccines, as opposed to publishing a rebuttal to it.

That goes to another major question in the case — did government action directly cause platforms to remove speech? The government has argued that it left it to platforms to make their own decisions as it flagged and even cajoled the companies about content.

Justice Samuel Alito and Fletcher, the government lawyer, are sparring over whether there are sufficient facts to show that the plaintiffs’ injuries — having their posts taken down to having accounts suspended by social media companies — were caused by government actions, giving them standing to seek an injunction. This is a major problem with this case, according to many legal observers.

The question, as the rhetoric in the case has gone so far, is whether the White House used its classic “bully pulpit” or used its “pulpit to bully.”

Brian Fletcher, the principal deputy solicitor general for the Biden administration, argues that the government has a right to speak to social media companies in an attempt to persuade them to choose to remove or reduce certain matters, so long as it does not coerce them. He said the test should be whether the government makes threats; bully-pulpit exhortations are protected by the First Amendment, he argued.

Michael D. Shear and David McCabe

Here’s how a Trump-appointed judge saw the Biden administration pressuring companies to censor speech.

This First Amendment case is a flashpoint in a broader effort by conservatives to document what they contend is a liberal conspiracy by Democrats and tech company executives to silence their views, and it taps into fury on the right about how social media companies have treated stories about the origins of Covid, the 2020 election and Hunter Biden, the president’s son.

The final outcome could shape the future of First Amendment law in a rapidly changing media environment and alter how far the government can go in trying to prevent the spread of potentially dangerous claims, particularly in an election or during emergencies like a pandemic.

The government’s actions at the heart of the case were intended largely as public health measures during the coronavirus pandemic. But a federal judge in Louisiana framed his ruling back in July through the filter of partisan culture wars — asking whether the government violated the First Amendment by unlawfully threatening the social media companies to censor speech that the Biden administration found distasteful and potentially harmful to the public.

In his ruling, Judge Terry A. Doughty described dozens of interactions between the administration and social media companies, including how two months after President Biden took office, his top digital adviser had emailed officials at Facebook urging them to do more to limit the spread of “vaccine hesitancy” on the social media platform.

Judge Doughty also outlined how officials at the Centers for Disease Control and Prevention had held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” posts. And in the summer of 2021, he wrote, the surgeon general’s top aide had repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.

The case sets up a showdown between the justices and a conservative appeals court.

The appeals court that partly upheld limits on the Biden administration’s communications with social media companies has a reputation for issuing decisions too conservative for the Supreme Court, which is itself tilted to the right by a six-justice supermajority of Republican appointees.

Of the appeals court’s 17 active judges, only five were appointed by Democratic presidents. Six members of the court were appointed by President Donald J. Trump.

The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.

But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism .

Other rulings from the Fifth Circuit, on issues like immigration , abortion pills and so-called ghost guns , have also met with at least tentative disapproval from the Supreme Court, suggesting that the appeals court is out of step with the justices.

At a news briefing in September, Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said the Fifth Circuit had staked out positions that “at least some of the center bloc of conservatives aren’t going to be able to stomach.”

He added that some of the rulings by the Fifth Circuit were “delivered from Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”

The case is one of several about the intersection of free speech and technology on the court’s docket.

The Supreme Court hears First Amendment cases fairly often. But it has never before considered as many cases on what the Constitution has to say about free speech in the internet era as it will in its current term, set to end in June.

Monday’s argument will be the fifth one since October considering the fundamental question of the scope of government power over social media platforms. The decision in that case and the four others will collectively mark the boundaries of free expression in the digital age.

Last month, the Supreme Court considered two cases on whether Florida and Texas could limit prominent social media companies from moderating content on their platforms, appearing skeptical of the breadth of laws that had been enacted in an effort to shield conservative voices on technology sites.

On Friday, the court, in two unanimous rulings, set requirements for when elected officials could block people from their social media accounts.

The court’s decisions in the five cases will have broad political and economic implications. A ruling that tech platforms have no editorial discretion to decide which posts to allow, for instance, would expose users to a greater variety of viewpoints, but it would almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.

Challenges of Ethically Regulating Free Speech on College Campuses

By shoellis

By: Olivia Welsh, Ethics and Policy Intern

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

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

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

The background of college campus free speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Between a rock and a hard place

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

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

US wants to ban TikTok, but First Amendment demands stronger case on national security

Many fear china's manipulation of americans' data collected on tiktok, but users info is already available for purchase on the open market through data brokers..

The H ouse voted 352-65 a week ago to pass the Protecting Americans from Foreign Adversary Controlled Applications Act. It would prohibit the distribution, maintenance or updating of TikTok or another designated app “controlled by a foreign adversary” within 180 days of the bill’s enactment unless there's a “qualified divestiture” – a sale approved by the government’s executive branch.

The proposal raises concerns for the speech rights of 170 million American users if the government’s actions require a sale or an outright ban of TikTok.

Notably, unlike past proposals, the bill is not an immediate ban but rather provides an option for a sale or divestiture approved by the government. The distinction between a straightforward “TikTok ban” and a forced sale or divestment might not impact users if a sale is unable to occur.

However, it will be important in any legal challenges under First Amendment analysis.

While there are other platforms for short-form video, TikTok’s users – content creators, consumers or small businesses – have chosen that platform as the one that best fits their needs and preferences. To overcome First Amendment concerns, the government will likely need to demonstrate that forced divestment or otherwise banning the app advances a compelling government interest and represents the least restrictive means of advancing that interest.

Regulating TikTok opens door to censoring Facebook, X

What might that compelling government interest be?

TikTok is headquartered in Singapore and Los Angeles , but its parent company ByteDance is a Chinese company . Because of this connection, some in Congress are primarily concerned with the data TikTok collects on Americans and how, if given to the Chinese Communist Party, that data could be used against U.S. interests.

Others say Beijing could manipulate the TikTok algorithm to engage in nefarious activities such as election interference or misinformation.

Hands off TikTok: Biden has shown us why government and social media shouldn't mix

However, much of the data collected by TikTok is already available for purchase on the open market through data brokers , and it seems China would rather gain information that way than torpedoing TikTok altogether.

Further, the government regulating TikTok because of concerns about how it organizes its algorithm could open the door for similar regulation and censorship of U.S. companies that collect data on its users – such as Facebook and X (formerly Twitter) – should a president decide to allege their leadership is influenced by foreign adversary in some way.

National security vs. 'our commitment to free expression'

Many have found that while there might be concerns about TikTok that lead to different individual choices around whether to use the app, the government has not yet made a strong enough case on national security.

In fact, the House Intelligence Committee's ranking member, Rep. Jim Himes, D-Conn., voted against the proposal, writing that he believes there is “a way to address the challenge posed by TikTok that is consistent with our commitment to free expression .”

Even in cases of known propaganda like the publication RT America , the U.S.-based broadcast of the Kremlin-backed Russia Today, the United States did not ban access to information but rather trusted Americans to choose the truth in the market of expression. Ultimately, it was the decisions of private actors and not the government that led the decade-old news outlet to go off the air in 2022 (though RT content in English can still be accessed via certain online streaming services).

Pick your presidential waffling: Trump flip-flops on TikTok ban, Biden plays both sides

Right now, we don’t know what the Chinese government is doing with TikTok data, or what if any influence it might have over decisions about the algorithm. This is why, in order to protect Americans, there are less restrictive steps Congress could consider that would have less of an impact on speech short of forced divestment.

The U.S. government has, for instance, banned TikTok from government devices . It could further consider requiring apps to post disclaimers if they have ties to the Chinese government or other adversarial nations, so that users are aware of concerns about propaganda, or it could require data be held at local sites.

These actions also have trade-offs and consequences, but they'd have less of an impact on free speech rights of TikTok’s American users.

Notably, the bill may not solely impact foreign businesses. It focuses on the distribution, maintenance or updating of a designated app or website. As a result, the burdens and penalties related to its enforcement could fall on U.S. companies.

These are companies that have chosen to allow TikTok in their app stores, for example, and, if a divestment does not occur, may be forced to remove the app even if they felt it met their data security requirements.

This raises concerns about potentially unconstitutional government intrusion into the decisions of these platforms regarding what content to host. Further, it could set a dangerous precedent of government intervention in the online space that many would find anathema in the offline space.

Given the potential impact on speech, concerns about TikTok must be addressed in a nuanced way, and there should be a high burden of proof for the government’s national security concerns.

The focus should not be merely on the company but on the impact on the millions of Americans who have chosen TikTok as a forum for expression – and the potential precedent it could set for government intervention into social media. 

Jennifer Huddleston is a technology policy research fellow at the Cato Institute and an adjunct professor at George Mason University’s Antonin Scalia Law School.