freedom of expression essay

Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth

• Share Chicago Journal of International Law | Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth on Facebook
• Share Chicago Journal of International Law | Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth on Twitter
• Share Chicago Journal of International Law | Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth on Email
• Share Chicago Journal of International Law | Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth on LinkedIn

Download PDF

This Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances regulation of digital platforms with the countervailing fundamental right to freedom of expression, a right that is essential for human dignity, the search for the possible truth, and democracy. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

I. Introduction

Before the internet, few actors could afford to participate in public debate due to the barriers that limited access to its enabling infrastructure, such as television channels and radio frequencies. 1 Digital platforms tore down this gate by creating open online communities for user-generated content, published without editorial control and at no cost. This exponentially increased participation in public discourse and the amount of information available. 2 At the same time, it led to an increase in disinformation campaigns, hate speech, slander, lies, and conspiracy theories used to advance antidemocratic goals. Platforms’ attempts to moderate speech at scale while maximizing engagement and profits have led to an increasingly prominent role for content moderation algorithms that shape who can participate and be heard in online public discourse. These systems play an essential role in the exercise of freedom of expression and in democratic competence and participation in the 21st century.

In this context, this Essay is a critical reflection on the impacts of the digital revolution and of the internet on democracy and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy; it also discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how social media platforms are revolutionizing interpersonal and social communication, and democratizing access to knowledge and information, but also lead to an exponential spread of mis- and disinformation, hate speech and conspiracy theories. Part III proposes a framework for the regulation of digital platforms that seeks to find the right balance with the countervailing fundamental right to freedom of expression. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

II. Democracy and Authoritarian Populism

Constitutional democracy emerged as the predominant ideology of the 20th century, rising above the alternative projects of communism, fascism, Nazism, military regimes, and religious fundamentalism . 3 Democratic constitutionalism centers around two major ideas that merged at the end of the 20th century: constitutionalism , heir of the liberal revolutions in England, America, and France, expressing the ideas of limited power, rule of law, and respect for fundamental rights; 4 and democracy , a regime of popular sovereignty, free and fair elections, and majority rule. 5 In most countries, democracy only truly consolidated throughout the 20th century through universal suffrage guaranteed with the end of restrictions on political participation based on wealth, education, sex, or race. 6

Contemporary democracies are made up of votes, rights, and reasons. They are not limited to fair procedural rules in the electoral process, but demand respect for substantive fundamental rights of all citizens and a permanent public debate that informs and legitimizes political decisions. 7 To ensure protection of these three aspects, most democratic regimes include in their constitutional framework a supreme court or constitutional court with jurisdiction to arbitrate the inevitable tensions that arise between democracy’s popular sovereignty and constitutionalism’s fundamental rights. 8 These courts are, ultimately, the institutions responsible for protecting fundamental rights and the rules of the democratic game against any abuse of power attempted by the majority. Recent experiences in Hungary, Poland, Turkey, Venezuela, and Nicaragua show that when courts fail to fulfill this role, democracy collapses or suffers major setbacks. 9

In recent years, several events have challenged the prevalence of democratic constitutionalism in many parts of the world, in a phenomenon characterized by many as democratic recession. 10 Even consolidated democracies have endured moments of turmoil and institutional discredit, 11 as the world witnessed the rise of an authoritarian, anti-pluralist, and anti-institutional populist wave posing serious threats to democracy.

Populism can be right-wing or left-wing, 12 but the recent wave has been characterized by the prevalence of right-wing extremism, often racist, xenophobic, misogynistic, and homophobic. 13 While in the past the far left was united through Communist International, today it is the far right that has a major global network. 14 The hallmark of right-wing populism is the division of society into “us” (the pure, decent, conservatives) and “them” (the corrupt, liberal, cosmopolitan elites). 15 Authoritarian populism flows from the unfulfilled promises of democracy for opportunities and prosperity for all. 16 Three aspects undergird this democratic frustration: political (people do not feel represented by the existing electoral systems, political leaders, and democratic institutions); social (stagnation, unemployment, and the rise of inequality); and cultural identity (a conservative reaction to the progressive identity agenda of human rights that prevailed in recent decades with the protection of the fundamental rights of women, African descendants, religious minorities, LGBTQ+ communities, indigenous populations, and the environment). 17

Extremist authoritarian populist regimes often adopt similar strategies to capitalize on the political, social, and cultural identity-based frustrations fueling democratic recessions. These tactics include by-pass or co-optation of the intermediary institutions that mediate the interface between the people and the government, such as the legislature, the press, and civil society. They also involve attacks on supreme courts and constitutional courts and attempts to capture them by appointing submissive judges. 18 The rise of social media potentializes these strategies by creating a free and instantaneous channel of direct communication between populists and their supporters. 19 This unmediated interaction facilitates the use of disinformation campaigns, hate speech, slander, lies, and conspiracy theories as political tools to advance antidemocratic goals. The instantaneous nature of these channels is ripe for impulsive reactions, which facilitate verbal attacks by supporters and polarization, feeding back into the populist discourse. These tactics threaten democracy and free and fair elections because they deceive voters and silence the opposition, distorting public debate. Ultimately, this form of communication undermines the values that justify the special protection of freedom of expression to begin with. The “truth decay” and “fact polarization” that result from these efforts discredit institutions and consequently foster distrust in democracy. 20

III. Internet, Social Media, and Freedom of Expression 21

The third industrial revolution, also known as the technological or digital revolution, has shaped our world today. 22 Some of its main features are the massification of personal computers, the universalization of smartphones and, most importantly, the internet. One of the main byproducts of the digital revolution and the internet was the emergence of social media platforms such as Facebook, Instagram, YouTube, TikTok and messaging applications like WhatsApp and Telegram. We live in a world of apps, algorithms, artificial intelligence, and innovation occurring at breakneck speed where nothing seems truly new for very long. This is the background for the narrative that follows.

A. The Impact of the Internet

The internet revolutionized the world of interpersonal and social communication, exponentially expanded access to information and knowledge, and created a public sphere where anyone can express ideas, opinions, and disseminate facts. 23 Before the internet, one’s participation in public debate was dependent upon the professional press, 24 which investigated facts, abided by standards of journalistic ethics, 25 and was liable for damages if it knowingly or recklessly published untruthful information. 26 There was a baseline of editorial control and civil liability over the quality and veracity of what was published in this medium. This does not mean that it was a perfect world. The number of media outlets was, and continues to be, limited in quantity and perspectives; journalistic companies have their own interests, and not all of them distinguish fact from opinion with the necessary care. Still, there was some degree of control over what became public, and there were costs to the publication of overtly hateful or false speech.

The internet, with the emergence of websites, personal blogs, and social media, revolutionized this status quo. It created open, online communities for user-generated texts, images, videos, and links, published without editorial control and at no cost. This advanced participation in public discourse, diversified sources, and exponentially increased available information. 27 It gave a voice to minorities, civil society, politicians, public agents, and digital influencers, and it allowed demands for equality and democracy to acquire global dimensions. This represented a powerful contribution to political dynamism, resistance to authoritarianism, and stimulation of creativity, scientific knowledge, and commercial exchanges. 28 Increasingly, the most relevant political, social, and cultural communications take place on the internet’s unofficial channels.

However, the rise of social media also led to an increase in the dissemination of abusive and criminal speech. 29 While these platforms did not create mis- or disinformation, hate speech, or speech that attacks democracy, the ability to publish freely, with no editorial control and little to no accountability, increased the prevalence of these types of speech and facilitated its use as a political tool by populist leaders. 30 Additionally, and more fundamentally, platform business models compounded the problem through algorithms that moderate and distribute online content. 31

B. The Role of Algorithms

The ability to participate and be heard in online public discourse is currently defined by the content moderation algorithms of a couple major technology companies. Although digital platforms initially presented themselves as neutral media where users could publish freely, they in fact exercise legislative, executive, and judicial functions because they unilaterally define speech rules in their terms and conditions and their algorithms decide how content is distributed and how these rules are applied. 32

Specifically, digital platforms rely on algorithms for two different functions: recommending content and moderating content. 33 First, a fundamental aspect of the service they offer involves curating the content available to provide each user with a personalized experience and increase time spent online. They resort to deep learning algorithms that monitor every action on the platform, draw from user data, and predict what content will keep a specific user engaged and active based on their prior activity or that of similar users. 34 The transition from a world of information scarcity to a world of information abundance generated fierce competition for user attention—the most valuable resource in the Digital Age. 35 The power to modify a person’s information environment has a direct impact on their behavior and beliefs. Because AI systems can track an individual’s online history, they can tailor specific messages to maximize impact. More importantly, they monitor whether and how the user interacts with the tailored message, using this feedback to influence future content targeting and progressively becoming more effective in shaping behavior. 36 Given that humans engage more with content that is polarizing and provocative, these algorithms elicit powerful emotions, including anger. 37 The power to organize online content therefore directly impacts freedom of expression, pluralism, and democracy. 38

In addition to recommendation systems, platforms rely on algorithms for content moderation, the process of classifying content to determine whether it violates community standards. 39 As mentioned, the growth of social media and its use by people around the world allowed for the spread of lies and criminal acts with little cost and almost no accountability, threatening the stability of even long-standing democracies. Inevitably, digital platforms had to enforce terms and conditions defining the norms of their digital community and moderate speech accordingly. 40 But the potentially infinite amount of content published online means that this control cannot be exercised exclusively by humans.

Content moderation algorithms optimize the scanning of published content to identify violations of community standards or terms of service at scale and apply measures ranging from removal to reducing reach or including clarifications or references to alternative information. Platforms often rely on two algorithmic models for content moderation. The first is the reproduction detection model , which uses unique identifiers to catch reproductions of content previously labeled as undesired. 41 The second system, the predictive model , uses machine learning techniques to identify potential illegalities in new and unclassified content. 42 Machine learning is a subtype of artificial intelligence that extracts patterns in training datasets, capable of learning from data without explicit programming to do so. 43 Although helpful, both models have shortcomings.

The reproduction detection model is inefficient for content such as hate speech and disinformation, where the potential for new and different publications is virtually unlimited and users can deliberately make changes to avoid detection. 44 The predictive model is still limited in its ability to address situations to which it has not been exposed in training, primarily because it lacks the human ability to understand nuance and to factor in contextual considerations that influence the meaning of speech. 45 Additionally, machine learning algorithms rely on data collected from the real world and may embed prejudices or preconceptions, leading to asymmetrical applications of the filter. 46 And because the training data sets are so large, it can be hard to audit them for these biases. 47

Despite these limitations, algorithms will continue to be a crucial resource in content moderation given the scale of online activities. 48 In the last two months of 2020 alone, Facebook applied a content moderation measure to 105 million publications, and Instagram to 35 million. 49 YouTube has 500 hours of video uploaded per minute and removed more than 9.3 million videos. 50 In the first half of 2020, Twitter analyzed complaints related to 12.4 million accounts for potential violations of its rules and took action against 1.9 million. 51 This data supports the claim that human moderation is impossible, and that algorithms are a necessary tool to reduce the spread of illicit and harmful content. On the one hand, holding platforms accountable for occasional errors in these systems would create wrong incentives to abandon algorithms in content moderation with the negative consequence of significantly increasing the spread of undesired speech. 52 On the other hand, broad demands for platforms to implement algorithms to optimize content moderation, or laws that impose very short deadlines to respond to removal requests submitted by users, can create excessive pressure for the use of these imprecise systems on a larger scale. Acknowledging the limitations of this technology is fundamental for precise regulation.

C. Some Undesirable Consequences

One of the most striking impacts of this new informational environment is the exponential increase in the scale of social communications and the circulation of news. Around the world, few newspapers, print publications, and radio stations cross the threshold of having even one million subscribers and listeners. This suggests the majority of these publications have a much smaller audience, possibly in the thousands or tens of thousands of people. 53 Television reaches millions of viewers, although diluted among dozens or hundreds of channels. 54 Facebook, on the other hand, has about 3 billion active users. 55 YouTube has 2.5 billion accounts. 56 WhatsApp, more than 2 billion. 57 The numbers are bewildering. However, and as anticipated, just as the digital revolution democratized access to knowledge, information, and public space, it also introduced negative consequences for democracy that must be addressed. Three of them include:

a) the increased circulation of disinformation, deliberate lying, hate speech, conspiracy theories, attacks on democracy, and inauthentic behavior, made possible by recommendation algorithms that optimize for user engagement and content moderation algorithms that are still incapable of adequately identifying undesirable content;

b) the tribalization of life, with the formation of echo chambers where groups speak only to themselves, reinforcing confirmation bias, 58 making speech progressively more radical, and contributing to polarization and intolerance; and

c) a global crisis in the business model of the professional press. Although social media platforms have become one of the main sources of information, they do not produce their own content. They hire engineers, not reporters, and their interest is engagement, not news. 59 Because advertisers’ spending has migrated away from traditional news publications to technological platforms with broader reaches, the press has suffered from a lack of revenue which has forced hundreds of major publications, national and local, to close their doors or reduce their journalist workforce. 60 But a free and strong press is more than just a private business; it is a pillar for an open and free society. It serves a public interest in the dissemination of facts, news, opinions, and ideas, indispensable preconditions for the informed exercise of citizenship. Knowledge and truth—never absolute, but sincerely sought—are essential elements for the functioning of a constitutional democracy. Citizens need to share a minimum set of common objective facts from which to inform their own judgments. If they cannot accept the same facts, public debate becomes impossible. Intolerance and violence are byproducts of the inability to communicate—hence the importance of “knowledge institutions,” such as universities, research entities, and the institutional press. The value of free press for democracy is illustrated by the fact that in different parts of the world, the press is one of the only private businesses specifically referred to throughout constitutions. Despite its importance for society and democracy, surveys reveal a concerning decline in its prestige. 61

In the beginning of the digital revolution, there was a belief that the internet should be a free, open, and unregulated space in the interest of protecting access to the platform and promoting freedom of expression. Over time, concerns emerged, and a consensus gradually grew for the need for internet regulation. Multiple approaches for regulating the internet were proposed, including: (a) economic, through antitrust legislation, consumer protection, fair taxation, and copyright rules; (b) privacy, through laws restricting collection of user data without consent, especially for content targeting; and (c) targeting inauthentic behavior, content control, and platform liability rules. 62

Devising the proper balance between the indispensable preservation of freedom of expression on the one hand, and the repression of illegal content on social media on the other, is one of the most complex issues of our generation. Freedom of expression is a fundamental right incorporated into virtually all contemporary constitutions and, in many countries, is considered a preferential freedom. Several reasons have been advanced for granting freedom of expression special protection, including its roles: (a) in the search for the possible truth 63 in an open and plural society, 64 as explored above in discussing the importance of the institutional press; (b) as an essential element for democracy 65 because it allows the free circulation of ideas, information, and opinions that inform public opinion and voting; and (c) as an essential element of human dignity, 66 allowing the expression of an individual’s personality.

The regulation of digital platforms cannot undermine these values but must instead aim at its protection and strengthening. However, in the digital age, these same values that historically justified the reinforced protection of freedom of expression can now justify its regulation. As U.N. Secretary-General António Guterres thoughtfully stated, “the ability to cause large-scale disinformation and undermine scientifically established facts is an existential risk to humanity.” 67

Two aspects of the internet business model are particularly problematic for the protection of democracy and free expression. The first is that, although access to most technological platforms and applications is free, users pay for access with their privacy. 68 As Lawrence Lessig observed, we watch television, but the internet watches us. 69 Everything each individual does online is monitored and monetized. Data is the modern gold. 70 Thus, those who pay for the data can more efficiently disseminate their message through targeted ads. As previously mentioned, the power to modify a person’s information environment has a direct impact on behavior and beliefs, especially when messages are tailored to maximize impact on a specific individual. 71

The second aspect is that algorithms are programmed to maximize time spent online. This often leads to the amplification of provocative, radical, and aggressive content. This in turn compromises freedom of expression because, by targeting engagement, algorithms sacrifice the search for truth (with the wide circulation of fake news), democracy (with attacks on institutions and defense of coups and authoritarianism), and human dignity (with offenses, threats, racism, and others). The pursuit of attention and engagement for revenue is not always compatible with the values that underlie the protection of freedom of expression.

IV. A Framework for the Regulation of Social Media

Platform regulation models can be broadly classified into three categories: (a) state or government regulation, through legislation and rules drawing a compulsory, encompassing framework; (b) self-regulation, through rules drafted by platforms themselves and materialized in their terms of use; and (c) regulated self-regulation or coregulation, through standards fixed by the state but which grant platform flexibility in materializing and implementing them. This Essay argues for the third model, with a combination of governmental and private responsibilities. Compliance should be overseen by an independent committee, with the minority of its representatives coming from the government, and the majority coming from the business sector, academia, technology entities, users, and civil society.

The regulatory framework should aim to reduce the asymmetry of information between platforms and users, safeguard the fundamental right to freedom of expression from undue private or state interventions, and protect and strengthen democracy. The current technical limitations of content moderation algorithms explored above and normal substantive disagreement about what content should be considered illegal or harmful suggest that an ideal regulatory model should optimize the balance between the fundamental rights of users and platforms, recognizing that there will always be cases where consensus is unachievable. The focus of regulation should be the development of adequate procedures for content moderation, capable of minimizing errors and legitimizing decisions even when one disagrees with the substantive result. 72 With these premises as background, the proposal for regulation formulated here is divided into three levels: (a) the appropriate intermediary liability model for user-generated content; (b) procedural duties for content moderation; and (c) minimum duties to moderate content that represents concrete threats to democracy and/or freedom of expression itself.

A. Intermediary Liability for User-Generated Content

There are three main regimes for platform liability for third-party content. In strict liability models, platforms are held responsible for all user-generated posts. 73 Since platforms have limited editorial control over what is posted and limited human oversight over the millions of posts made daily, this would be a potentially destructive regime. In knowledge-based liability models, platform liability arises if they do not act to remove content after an extrajudicial request from users—this is also known as a “notice-and-takedown” system. 74 Finally, a third model would make platforms liable for user-generated content only in cases of noncompliance with a court order mandating content removal. This latter model was adopted in Brazil with the Civil Framework for the Internet (Marco Civil da Internet). 75 The only exception in Brazilian legislation to this general rule is revenge porn: if there is a violation of intimacy resulting from the nonconsensual disclosure of images, videos, or other materials containing private nudity or private sexual acts, extrajudicial notification is sufficient to create an obligation for content removal under penalty of liability. 76

In our view, the Brazilian model is the one that most adequately balances the fundamental rights involved. As mentioned, in the most complex cases concerning freedom of expression, people will disagree on the legality of speech. Rules holding platforms accountable for not removing content after mere user notification create incentives for over-removal of any potentially controversial content, excessively restricting users’ freedom of expression. If the state threatens to hold digital platforms accountable if it disagrees with their assessment, companies will have the incentive to remove all content that could potentially be considered illicit by courts to avoid liability. 77

Nonetheless, this liability regime should coexist with a broader regulatory structure imposing principles, limits, and duties on content moderation by digital platforms, both to increase the legitimacy of platforms’ application of their own terms and conditions and to minimize the potentially devastating impacts of illicit or harmful speech.

B. Standards for Proactive Content Moderation

Platforms have free enterprise and freedom of expression rights to set their own rules and decide the kind of environment they want to create, as well as to moderate harmful content that could drive users away. However, because these content moderation algorithms are the new governors of the public sphere, 78 and because they define the ability to participate and be heard in online public discourse, platforms should abide by minimum procedural duties of transparency and auditing, due process, and fairness.

1. Transparency and Auditing

Transparency and auditing measures serve mainly to ensure that platforms are accountable for content moderation decisions and for the impacts of their algorithms. They provide users with greater understanding and knowledge about the extent to which platforms regulate speech, and they provide oversight bodies and researchers with information to understand the threats of digital services and the role of platforms in amplifying or minimizing them.

Driven by demands from civil society, several digital platforms already publish transparency reports. 79 However, the lack of binding standards means that these reports have significant gaps, no independent verification of the information provided, 80 and no standardization across platforms, preventing comparative analysis. 81 In this context, regulatory initiatives that impose minimum requirements and standards are crucial to make oversight more effective. On the other hand, overly broad transparency mandates may force platforms to adopt simpler content moderation rules to reduce costs, which could negatively impact the accuracy of content moderation or the quality of the user experience. 82 A tiered approach to transparency, where certain information is public and certain information is limited to oversight bodies or previously qualified researchers, ensures adequate protection of countervailing interests, such as user privacy and business confidentiality. 83 The Digital Services Act, 84 recently passed in the European Union, contains robust transparency provisions that generally align with these considerations. 85

The information that should be publicly provided includes clear and unambiguous terms of use, the options available to address violations (such as removal, amplification reduction, clarifications, and account suspension) and the division of labor between algorithms and humans. More importantly, public transparency reports should include information on the accuracy of automated moderation measures and the number of content moderation actions broken down by type (such as removal, blocking, and account deletion). 86 There must also be transparency obligations to researchers, giving them access to crucial information and statistics, including to the content analyzed for the content moderation decisions. 87

Although valuable, transparency requirements are insufficient in promoting accountability because they rely on users and researchers to actively monitor platform conduct and presuppose that they have the power to draw attention to flaws and promote changes. 88 Legally mandated third-party algorithmic auditing is therefore an important complement to ensure that these models satisfy legal, ethical, and safety standards and to elucidate the embedded value tradeoffs, such as between user safety and freedom of expression. 89 As a starting point, algorithm audits should consider matters such as how accurately they perform, any potential bias or discrimination incorporated in the data, and to what extent the internal mechanics are explainable to humans. 90 The Digital Services Act contains a similar proposal. 91

The market for algorithmic auditing is still emergent and replete with uncertainty. In attempting to navigate this scenario, regulators should: (a) define how often the audits should happen; (b) develop standards and best practices for auditing procedures; (c) mandate specific disclosure obligations so auditors have access to the required data; and (d) define how identified harms should be addressed. 92

2. Due Process and Fairness

To ensure due process, platforms must inform users affected by content moderation decisions of the allegedly violated provision of the terms of use, as well as offer an internal system of appeals against these decisions. Platforms must also create systems that allow for the substantiated denunciation of content or accounts by other users, and notify reporting users of the decision taken.

As for fairness, platforms should ensure that the rules are applied equally to all users. Although it is reasonable to suppose that platforms may adopt different criteria for public persons or information of public interest, these exceptions must be clear in the terms of use. This issue has recently been the subject of controversy between the Facebook Oversight Board and the company. 93

Due to the enormous amount of content published on the platforms and the inevitability of using automated mechanisms for content moderation, platforms should not be held accountable for a violation of these duties in specific cases, but only when the analysis reveals a systemic failure to comply. 94

C. Minimum Duties to Moderate Illicit Content

The regulatory framework should also contain specific obligations to address certain types of especially harmful speech. The following categories are considered by the authors to fall within this group: disinformation, hate speech, anti-democratic attacks, cyberbullying, terrorism, and child pornography. Admittedly, defining and consensually identifying the speech included in these categories—except in the case of child pornography 95 —is a complex and largely subjective task. Precisely for this reason, platforms should be free to define how the concepts will be operationalized, as long as they guide definitions by international human rights parameters and in a transparent manner. This does not mean that all platforms will reach the same definitions nor the same substantive results in concrete cases, but this should not be considered a flaw in the system, since the plurality of rules promotes freedom of expression. The obligation to observe international human rights parameters reduces the discretion of companies, while allowing for the diversity of policies among them. After defining these categories, platforms must establish mechanisms that allow users to report violations.

In addition, platforms should develop mechanisms to address coordinated inauthentic behaviors, which involve the use of automated systems or deceitful means to artificially amplify false or dangerous messages by using bots, fake profiles, trolls, and provocateurs. 96 For example, if a person publishes a post for his twenty followers saying that kerosene oil is good for curing COVID-19, the negative impact of this misinformation is limited. However, if that message is amplified to thousands of users, a greater public health issue arises. Or, in another example, if the false message that an election was rigged reaches millions of people, there is a democratic risk due to the loss of institutional credibility.

The role of oversight bodies should be to verify that platforms have adopted terms of use that prohibit the sharing of these categories of speech and ensure that, systemically, the recommendation and content moderation systems are trained to moderate this content.

V. Conclusion

The World Wide Web has provided billions of people with access to knowledge, information, and the public space, changing the course of history. However, the misuse of the internet and social media poses serious threats to democracy and fundamental rights. Some degree of regulation has become necessary to confront inauthentic behavior and illegitimate content. It is essential, however, to act with transparency, proportionality, and adequate procedures, so that pluralism, diversity, and freedom of expression are preserved.

In addition to the importance of regulatory action, the responsibility for the preservation of the internet as a healthy public sphere also lies with citizens. Media education and user awareness are fundamental steps for the creation of a free but positive and constructive environment on the internet. Citizens should be conscious that social media can be unfair, perverse, and can violate fundamental rights and basic rules of democracy. They must be attentive not to uncritically pass on all information received. Alongside states, regulators, and tech companies, citizens are also an important force to address these threats. In Jonathan Haidt’s words, “[w]hen our public square is governed by mob dynamics unrestrained by due process, we don’t get justice and inclusion; we get a society that ignores context, proportionality, mercy, and truth.” 97

• 1 Tim Wu, Is the First Amendment Obsolete? , in The Perilous Public Square 15 (David E. Pozen ed., 2020).
• 2 Jack M. Balkin, Free Speech is a Triangle , 118 Colum. L. Rev. 2011, 2019 (2018).
• 3 Luís Roberto Barroso, O Constitucionalismo Democrático ou Neoconstitucionalismo como ideologia vitoriosa do século XX , 4 Revista Publicum 14, 14 (2018).
• 4 Id. at 16.
• 7 Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate xii (2006); Ronald Dworkin, Taking Rights Seriously 181 (1977).
• 8 Barroso, supra note 3, at 16.
• 9 Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts i (2015).
• 10 Larry Diamond, Facing up to the Democratic Recession , 26 J. Democracy 141 (2015). Other scholars have referred to the same phenomenon using other terms, such as democratic retrogression, abusive constitutionalism, competitive authoritarianism, illiberal democracy, and autocratic legalism. See, e.g. , Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy , 65 UCLA L. Rev. 91 (2018); David Landau, Abusive Constitutionalism , 47 U.C. Davis L. Rev. 189 (2013); Kim Lane Scheppele, Autocratic Legalism , 85 U. Chi. L. Rev. 545 (2018).
• 11 Dan Balz, A Year After Jan. 6, Are the Guardrails that Protect Democracy Real or Illusory? , Wash. Post (Jan. 6, 2022), https://perma.cc/633Z-A9AJ; Brexit: Reaction from Around the UK , BBC News (June 24, 2016), https://perma.cc/JHM3-WD7A.
• 12 Cas Mudde, The Populist Zeitgeist , 39 Gov’t & Opposition 541, 549 (2004).
• 13 See generally Mohammed Sinan Siyech, An Introduction to Right-Wing Extremism in India , 33 New Eng. J. Pub. Pol’y 1 (2021) (discussing right-wing extremism in India). See also Eviane Leidig, Hindutva as a Variant of Right-Wing Extremism , 54 Patterns of Prejudice 215 (2020) (tracing the history of “Hindutva”—defined as “an ideology that encompasses a wide range of forms, from violent, paramilitary fringe groups, to organizations that advocate the restoration of Hindu ‘culture’, to mainstream political parties”—and finding that it has become mainstream since 2014 under Modi); Ariel Goldstein, Brazil Leads the Third Wave of the Latin American Far Right , Ctr. for Rsch. on Extremism (Mar. 1, 2021), https://perma.cc/4PCT-NLQJ (discussing right-wing extremism in Brazil under Bolsonaro); Seth G. Jones, The Rise of Far-Right Extremism in the United States , Ctr. for Strategic & Int’l Stud. (Nov. 2018), https://perma.cc/983S-JUA7 (discussing right-wing extremism in the U.S. under Trump).
• 14 Sergio Fausto, O Desafio Democrático [The Democratic Challenge], Piauí (Aug. 2022), https://perma.cc/474A-3849.
• 15 Jan-Werner Muller, Populism and Constitutionalism , in The Oxford Handbook of Populism 590 (Cristóbal Rovira Kaltwasser et al. eds., 2017).
• 16 Ming-Sung Kuo, Against Instantaneous Democracy , 17 Int’l J. Const. L. 554, 558–59 (2019); see also Digital Populism , Eur. Ctr. for Populism Stud., https://perma.cc/D7EV-48MV.
• 17 Luís Roberto Barroso, Technological Revolution, Democratic Recession and Climate Change: The Limits of Law in a Changing World , 18 Int’l J. Const. L. 334, 349 (2020).
• 18 For the use of social media, see Sven Engesser et al., Populism and Social Media: How Politicians Spread a Fragmented Ideology , 20 Info. Commc’n & Soc’y 1109 (2017). For attacks on the press, see WPFD 2021: Attacks on Press Freedom Growing Bolder Amid Rising Authoritarianism , Int’l Press Inst. (Apr. 30, 2021), https://perma.cc/SGN9-55A8. For attacks on the judiciary, see Michael Dichio & Igor Logvinenko, Authoritarian Populism, Courts and Democratic Erosion , Just Sec. (Feb. 11, 2021), https://perma.cc/WZ6J-YG49.
• 19 Kuo, supra note 16, at 558–59; see also Digital Populism , supra note 16.
• 20 Vicki C. Jackson, Knowledge Institutions in Constitutional Democracy: Reflections on “the Press” , 15 J. Media L. 275 (2022).
• 21 Many of the ideas and information on this topic were collected in Luna van Brussel Barroso, Liberdade de Expressão e Democracia na Era Digital: O impacto das mídias sociais no mundo contemporâneo [Freedom of Expression and Democracy in the Digital Era: The Impact of Social Media in the Contemporary World] (2022), which was recently published in Brazil.
• 22 The first industrial revolution is marked by the use of steam as a source of energy in the middle of the 18th century. The second started with the use of electricity and the invention of the internal combustion engine at the turn of the 19th to the 20th century. There are already talks of the fourth industrial revolution as a product of the fusion of technologies that blurs the boundaries among the physical, digital, and biological spheres. See generally Klaus Schwab, The Fourth Industrial Revolution (2017).
• 23 Gregory P. Magarian, The Internet and Social Media , in The Oxford Handbook of Freedom of Speech 350, 351–52 (Adrienne Stone & Frederick Schauer eds., 2021).
• 24 Wu, supra note 1, at 15.
• 25 Journalistic ethics include distinguishing fact from opinion, verifying the veracity of what is published, having no self-interest in the matter being reported, listening to the other side, and rectifying mistakes. For an example of an international journalistic ethics charter, see Global Charter of Ethics for Journalists , Int’l Fed’n of Journalists (June 12, 2019), https://perma.cc/7A2C-JD2S.
• 26 See, e.g. , New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
• 27 Balkin, supra note 2, at 2018.
• 28 Magarian, supra note 23, at 351–52.
• 29 Wu, supra note 1, at 15.
• 30 Magarian, supra note 23, at 357–60.
• 31 Niva Elkin-Koren & Maayan Perel, Speech Contestation by Design: Democratizing Speech Governance by AI , 50 Fla. State U. L. Rev. (forthcoming 2023).
• 32 Thomas E. Kadri & Kate Klonick, Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech , 93 S. Cal. L. Rev. 37, 94 (2019).
• 33 Elkin-Koren & Perel, supra note 31.
• 34 Chris Meserole, How Do Recommender Systems Work on Digital Platforms? , Brookings Inst.(Sept. 21, 2022), https://perma.cc/H53K-SENM.
• 35 Kris Shaffer, Data versus Democracy: How Big Data Algorithms Shape Opinions and Alter the Course of History xi–xv (2019).
• 36 See generally Stuart Russell, Human Compatible: Artificial Intelligence and the Problem of Control (2019).
• 37 Shaffer, supra note 35, at xi–xv.
• 38 More recently, with the advance of neuroscience, platforms have sharpened their ability to manipulate and change our emotions, feelings and, consequently, our behavior in accordance not with our own interests, but with theirs (or of those who they sell this service to). Kaveh Waddell, Advertisers Want to Mine Your Brain , Axios (June 4, 2019), https://perma.cc/EU85-85WX. In this context, there is already talk of a new fundamental right to cognitive liberty, mental self-determination, or the right to free will. Id .
• 39 Content moderation refers to “systems that classify user generated content based on either matching or prediction, leading to a decision and governance outcome (e.g. removal, geoblocking, account takedown).” Robert Gorwa, Reuben Binns & Christian Katzenbach, Algorithmic Content Moderation: Technical and Political Challenges in the Automation of Platform Governance , 7 Big Data & Soc’y 1, 3 (2020).
• 40 Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation , 51 U.C. Davis L. Rev. 1149, 1183 (2018).
• 41 See Carey Shenkman, Dhanaraj Thakur & Emma Llansó, Do You See What I See? Capabilities and Limits of Automated Multimedia Content Analysis 13–16 (May 2021),https://perma.cc/J9MP-7PQ8.
• 42 See id. at 17–21.
• 43 See Michael Wooldridge, A Brief History of Artificial Intelligence: What It Is, Where We Are, and Where We Are Going 63 (2021).

Perceptual hashing has been the primary technology utilized to mitigate the spread of CSAM, since the same materials are often repeatedly shared, and databases of offending content are maintained by institutions like the National Center for Missing and Exploited Children (NCMEC) and its international analogue, the International Centre for Missing & Exploited Children (ICMEC).

• 45 Natural language understanding is undermined by language ambiguity, contextual dependence of words of non-immediate proximity, references, metaphors, and general semantics rules. See Erik J. Larson, The Myth of Artificial Intelligence: Why Computers Can’t Think the Way We Do 52–55 (2021). Language comprehension in fact requires unlimited common-sense knowledge about the actual world, which humans possess and is impossible to code. Id . A case decided by Facebook’s Oversight Board illustrates the point: the company’s predictive filter for combatting pornography removed images from a breast cancer awareness campaign, a clearly legitimate content not meant to be targeted by the algorithm. See Breast Cancer Symptoms and Nudity , Oversight Bd. (2020), https://perma.cc/U9A5-TTTJ. However, based on prior training, the algorithm removed the publication because it detected pornography and was unable to factor the contextual consideration that this was a legitimate health campaign. Id .
• 46 See generally Adriano Koshiyama, Emre Kazim & Philip Treleaven, Algorithm Auditing: Managing the Legal, Ethical, and Technological Risks of Artificial Intelligence, Machine Learning, and Associated Algorithms , 55 Computer 40 (2022).
• 47 Elkin-Koren & Perel, supra note 31.
• 48 Evelyn Douek, Governing Online Speech: From “Posts-as-Trumps” to Proportionality and Probability , 121 Colum. L. Rev. 759, 791 (2021).
• 53 See Martha Minow, Saving the Press: Why the Constitution Calls for Government Action to Preserve Freedom of Speech 20 (2021). For example, the best-selling newspaper in the world, The New York Times , ended the year 2022 with around 10 million subscribers across digital and print. Katie Robertson, The New York Times Company Adds 180,000 Digital Subscribers , N.Y. Times (Nov. 2, 2022), https://perma.cc/93PF-TKC5. The Economist magazine had approximately 1.2 million subscribers in 2022. The Economist Group, Annual Report 2022 24 (2022), https://perma.cc/9HQQ-F7W2. Around the world, publications that reach one million subscribers are rare. These Are the Most Popular Paid Subscription News Websites , World Econ. F. (Apr. 29, 2021), https://perma.cc/L2MK-VPNX.
• 54 Lawrence Lessig, They Don’t Represent Us: Reclaiming Our Democracy 105 (2019).
• 55 Essential Facebook Statistics and Trends for 2023 , Datareportal (Feb. 19, 2023), https://perma.cc/UH33-JHUQ.
• 56 YouTube User Statistics 2023 , Glob. Media Insight (Feb. 27, 2023), https://perma.cc/3H4Y-H83V.
• 57 Brian Dean, WhatsApp 2022 User Statistics: How Many People Use WhatsApp , Backlinko (Jan. 5, 2022), https://perma.cc/S8JX-S7HN.
• 58 Confirmation bias, the tendency to seek out and favor information that reinforces one’s existing beliefs, presents an obstacle to critical thinking. Sachin Modgil et al., A Confirmation Bias View on Social Media Induced Polarisation During COVID-19 , Info. Sys. Frontiers (Nov. 20, 2021).
• 59 Minow, supra note 53, at 2.
• 60 Id. at 3, 11.
• 61 On the importance of the role of the press as an institution of public interest and its “crucial relationship” with democracy, see id. at 35. On the press as a “knowledge institution,” the idea of “institutional press,” and data on the loss of prestige by newspapers and television stations, see Jackson, supra note 20, at 4–5.
• 62 See , e.g. , Jack M. Balkin, How to Regulate (and Not Regulate) Social Media , 1 J. Free Speech L. 71, 89–96 (2021).
• 63 By possible truth we mean that not all claims, opinions and beliefs can be ascertained as true or false. Objective truths are factual and can thus be proven even when controversial—for example, climate change and the effectiveness of vaccines. Subjective truths, on the other hand, derive from individual normative, religious, philosophical, and political views. In a pluralistic world, any conception of freedom of expression must protect individual subjective beliefs.
• 64 Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595, 595 (May 2011).
• 66 Steven J. Heyman, Free Speech and Human Dignity 2 (2008).
• 67 A Global Dialogue to Guide Regulation Worldwide , UNESCO (Feb. 23, 2023), https://perma.cc/ALK8-HTG3.
• 68 Can We Fix What’s Wrong with Social Media? , Yale L. Sch. News (Aug. 3, 2022), https://perma.cc/MN58-2EVK.
• 69 Lessig, supra note 54, at 105.
• 71 See supra Part III.B.
• 72 Doeuk, supra note 48, at 804–13; see also John Bowers & Jonathan Zittrain, Answering Impossible Questions: Content Governance in an Age of Disinformation , Harv. Kennedy Sch. Misinformation Rev. (Jan. 14, 2020), https://perma.cc/R7WW-8MQX.
• 73 Daphne Keller, Systemic Duties of Care and Intermediary Liability , Ctr. for Internet & Soc’y Blog (May 28, 2020), https://perma.cc/25GU-URGT.
• 75 Decreto No. 12.965, de 23 de abril de 2014, Diário Oficial da União [D.O.U.] de 4.14.2014 (Braz.) art. 19. In order to ensure freedom of expression and prevent censorship, providers of internet applications can only be civilly liable for damages resulting from content generated by third parties if, after specific court order, they do not make arrangements to, in the scope and technical limits of their service and within the indicated time, make unavailable the content identified as infringing, otherwise subject to the applicable legal provisions. Id .
• 76 Id. art. 21. The internet application provider that provides content generated by third parties will be held liable for the violation of intimacy resulting from the disclosure, without authorization of its participants, of images, videos, or other materials containing nude scenes or private sexual acts when, upon receipt of notification by the participant or its legal representative, fail to diligently promote, within the scope and technical limits of its service, the unavailability of this content. Id .
• 77 Balkin, supra note 2, at 2017.
• 78 Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech , 131 Harv. L. Rev. 1598, 1603 (2018).
• 79 Transparency Reporting Index, Access Now (July 2021), https://perma.cc/2TSL-2KLD (cataloguing transparency reporting from companies around the world).
• 80 Hum. Rts. Comm., Rep. of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ¶¶ 63–66, U.N. Doc A/HRC/32/35 (2016).
• 81 Paddy Leerssen, The Soap Box as a Black Box: Regulating Transparency in Social Media Recommender Systems , 11 Eur. J. L. & Tech. (2020).
• 82 Daphne Keller, Some Humility About Transparency , Ctr. for Internet & Soc’y Blog (Mar. 19, 2021), https://perma.cc/4Y85-BATA.
• 83 Mark MacCarthy, Transparency Requirements for Digital Social Media Platforms: Recommendations for Policy Makers and Industry , Transatlantic Working Grp. (Feb. 12, 2020).
• 84 2022 O.J. (L 277) 1 [hereinafter DSA].
• 85 The DSA was approved by the European Parliament on July 5, 2022, and on October 4, 2022, the European Council gave its final acquiescence to the regulation. Digital Services: Landmark Rules Adopted for a Safer, Open Online Environment , Eur. Parliament (July 5, 2022), https://perma.cc/BZP5-V2B2. The DSA increases transparency and accountability of platforms, by providing, for example, for the obligation of “clear information on content moderation or the use of algorithms for recommending content (so-called recommender systems); users will be able to challenge content moderation decisions.” Id .
• 86 MacCarthy, supra note 83, 19–24.
• 87 To this end, American legislators recently introduced a U.S. Congressional bill that proposes a model for conducting research on the impacts of digital communications in a way that protects user privacy. See Platform Accountability and Transparency Act, S. 5339, 117th Congress (2022). The project mandates that digital platforms share data with researchers previously authorized by the Federal Trade Commission and publicly disclose certain data about content, algorithms, and advertising. Id .
• 88 Yifat Nahmias & Maayan Perel, The Oversight of Content Moderation by AI: Impact Assessment and Their Limitations , 58 Harv. J. on Legis. 145, 154–57 (2021).
• 89 Auditing Algorithms: The Existing Landscape, Role of Regulator and Future Outlook , Digit. Regul. Coop. F. (Sept. 23, 2022), https://perma.cc/7N6W-JNCW.
• 90 See generally Koshiyama et al., supra note 46.
• 91 In Article 37, the DSA provides that digital platforms of a certain size should be accountable, through annual independent auditing, for compliance with the obligations set forth in the Regulation and with any commitment undertaken pursuant to codes of conduct and crisis protocols.
• 92 Digit. Regul. Coop. F., supra note 89.
• 93 In a transparency report published at the end of its first year of operation, the Oversight Board highlighted the inadequacy of the explanations presented by Meta on the operation of a system known as cross-check, which apparently gave some users greater freedom on the platform. In January 2022, Meta explained that the cross-check system grants an additional degree of review to certain content that internal systems mark as violating the platform’s terms of use. Meta submitted a query to the Board on how to improve the functioning of this system and the Board made relevant recommendations. See Oversight Board Published Policy Advisory Opinion on Meta’s Cross-Check Program , Oversight Bd. (Dec. 2022), https://perma.cc/87Z5-L759.
• 94 Evelyn Douek, Content Moderation as Systems Thinking , 136 Harv. L. Rev. 526, 602–03 (2022).
• 95 The illicit nature of child pornography is objectively apprehended and does not implicate the same subjective considerations that the other referenced categories entail. Not surprisingly, several databases have been created to facilitate the moderation of this content. See Ofcom, Overview of Perceptual Hashing Technology 14 (Nov. 22, 2022), https://perma.cc/EJ45-B76X (“Several hash databases to support the detection of known CSAM exist, e.g. the National Center for Missing and Exploited Children (NCMEC) hash database, the Internet Watch Foundation (IWF) hash list and the International Child Sexual Exploitation (ICSE) hash database.”).
• 97 Jonathan Haidt, Why the Past 10 Years of American Life Have Been Uniquely Stupid , Atlantic (Apr. 11, 2022), https://perma.cc/2NXD-32VM.

Advertisement

Justifying Limitations on the Freedom of Expression

• Open access
• Published: 01 November 2020
• Volume 22 , pages 91–108, ( 2021 )

Cite this article

You have full access to this open access article

• Gehan Gunatilleke   ORCID: orcid.org/0000-0002-8670-8602 1 , 2  

183k Accesses

12 Citations

27 Altmetric

Explore all metrics

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

Similar content being viewed by others

The Bill of Rights and Freedom of Belief and Expression: They Provide for Liberty, Not License

Toleration and the Law

Avoid common mistakes on your manuscript.

Introduction

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.

One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.

The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

The Value of the Freedom of Expression

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).

Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.

The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.

On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).

The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.

The Proportionality Test

Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.

In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.

A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto   sensu  ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).

Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).

A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.

At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.

This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).

At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.

The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.

A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.

First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.

Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto   sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.

The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.

The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).

Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.

Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.

A Duty-Based Justificatory Approach

The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.

Duties of Justice

The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).

Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.

What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.

Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.

A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.

The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.

A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.

A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.

An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.

A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.

Is the Language of Duties Dangerous?

The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).

Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.

Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.

In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.

Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.

There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.

Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)

‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

Books, Chapters, and Articles

Arai-Takahashi Y (2002) The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR. Intersentia, Cambridge

Google Scholar  

Arai-Takahashi Y (2005) Scrupulous but Dynamic’—the Freedom of Expression and the Principle of Proportionality under European Community Law. Yearbook of European Law 24(1): 27-79

Barak A (2012) Proportionality: Constitutional Rights and Their Limitations. Cambridge University Press, Cambridge

Berlin I (1969) Two Concepts of Liberty. In Isaiah Berlin, Four Essays on Liberty . Oxford University Press, Oxford

Boyle K and Shah S (2014) Thought, Expression, Association and Assembly. In: Moeckli D, Shah S, Sivakumaranm S, and Harris D (eds) International Human Rights Law. Oxford University Press, Oxford

Choudhry S (2006) So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1. Supreme Court Law Review 34: 501-535

Dworkin R (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

Dworkin R (1984) Rights as Trumps. In: Waldron J (ed) Theories of Rights: Oxford Readings in Philosophy. Oxford University Press, Oxford

Dworkin R (1985) A Matter of Principle. Harvard University Press, Cambridge, MA

Feinberg J (1970) The Nature and Value of Rights. The Journal of Value Inquiry 4(4): 243-260

Feinberg J (1987) The Moral Limits of the Criminal Law Volume 1: Harm to Others. Oxford University Press, Oxford

Gaus GF (1996a). Justificatory Liberalism: An Essay on Epistemology and Political Theory. Oxford University Press, Oxford

Gaus GF (1996b) Liberalism, Stanford Encyclopaedia of Philosophy (revised version as of 22 January 2018)

George RP (1995) Making Men Moral: Civil Liberties and Public Morality. Oxford University Press, Oxford

Goodin RE (2017) Duties of Charity, Duties of Justice. Political Studies 65(2): 268-283

Grimm D (2007) Proportionality in Canadian and German Constitutional Jurisprudence. University of Toronto Law Journal 57: 383-397

Hart HLA (1955) Are There Any Natural Rights? The Philosophical Review 64(2): 175-191

Hohfeld WN (1919) Fundamental Legal Conceptions as Applied in Judicial Reasoning. Cook WW (ed). Yale University Press, New Haven

Khan AM (2015) Pakistan’s Anti-Blasphemy Laws and the Illegitimate use of the ‘Law, Public Order, and Morality’ Limitation on Constitutional Rights. The Review of Faith & International Affairs 13(1): 13-22

Knox JH (2008) Horizontal Human Rights Law. The American Journal of International Law 102(1): 1-47

Kumm M (2004) Constitutional rights as principles: On the structure and domain of constitutional justice. International Journal of Constitutional Law 2(3): 574-596

Kumm M (2010) The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review. Law & Ethics of Human Rights 4: 142-175

Letsas G (2007) A Theory of Interpretation of the European Convention on Human Rights. Oxford University Press, Oxford

Letsas G (2006) Two Concepts of the Margin of Appreciation. Oxford Journal of Legal Studies 26(4): 705-732

Marmor A (2018) Two Rights of the Freedom of Expression. Ratio Juris 31: 139-159

Mill JS (1859) On Liberty

Mill JS (1861) Utilitarianism. In: The Collected Works, Volume 10 (1974), University of Toronto Press, Toronto

Möller K (2014) Constructing the Proportionality Test: An Emerging Global Conversation. In: Lazarus L, McCrudden C and Bowles N (eds) Reasoning Rights: Comparative Judicial Engagement. Hart Publishing, London

Moyn S (2016) Rights vs. Duties: Reclaiming Civic Balance. Boston Review 41(3): 1-12

O’Neill O (1996) Towards Justice and Virtue: A Constructive Account of Practical Reasoning. Cambridge University Press, Cambridge

Petrasek D (1999) Taking Duties Seriously: Individual Duties in International Human Rights Law – A Commentary. International Council on Human Rights Policy, Versoix

Rawls J (1999). A Theory of Justice: Revised Edition. Harvard University Press, Cambridge, MA

Rawls J (2005) Political Liberalism: Expanded Edition. Columbia University Press, New York

Raz J (1986) The Morality of Freedom. Clarendon Press, Oxford

Raz J (1999) Practical Reason and Norms. Oxford University Press, Oxford

Rivers J (2006) Proportionality and Variable Intensity of Review. Cambridge Law Journal 65: 174-207

Scanlon T (1998) What We Owe to Each Other. Belknap Press, Cambridge, MA

Sen A (1997) Human Rights and Asian Values: What Lee Kuan Yew and Li Peng don't understand about Asia. The New Republic 217 (2-3): 33-40

Shiffrin S (2003) Speech, Death, and Double Effect’ New York University Law Review 78(3): 1135-1185

Stone GR (1987) Content-Neutral Restrictions. University of Chicago Law Review 54: 46-118

Strauss DA (2002) Freedom of Speech and the Common-Law Constitution. In: Bollinger LC and Stone GR (eds) Eternally Vigilant: The Freedom of Expression in the Modern Era, University of Chicago Law Press, Chicago

Tremblay LB (2014) An egalitarian defense of proportionality-based balancing. International Journal of Constitutional Law 12 (4): 864-890

Tridimas T (2007) The General Principles of EU Law. Oxford University Press, Oxford

Tsakyrakis S (2009) Proportionality: An Assault on Human Rights? International Journal of Constitutional Law 7: 468-493

Urbina FJ (2015) Incommensurability and Balancing. Oxford Journal of Legal Studies 35 (3): 575-605

Urbina FJ (2014) Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’. Canadian Journal of Law & Jurisprudence 27 (1): 167-192

Van Dijk P and Van Hoof GJH (1998) Theory and Practice of the European Convention on Human Rights. 3rd edition. Kluwer, The Hague

Von Bernstorff J (2014). Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to the Realisation of Individual and Collective Self Determination. In: Lazarus L, McCrudden C and Bowles N (eds) Reasoning Rights: Comparative Judicial Engagement. Hart Publishing, London

Waldron J (1993). Liberal Rights. Cambridge University Press, Cambridge

Webber G (2009) The Negotiable Constitution: On the Limitation of Rights. Cambridge University Press, Cambridge

Zoller E (2009) The United States Supreme Court and the Freedom of Expression. Indiana Law Journal 84: 885-916

Zysset A (2019) Freedom of expression, the right to vote, and proportionality at the European Court of Human Rights: An internal critique. International Journal of Constitutional Law 17(1): 230-251

Claudia Andrea Marchant Reyes et al. v. Chile, Communication No 2627/2015 (CCPR views adopted on 7 November 2017), CCPR/C/121/D/2627/2015

Fedotova v. The Russian Federation , Communication No 1932/2010 (CCPR views adopted on 31 October 2012), CCPR/C/106/D/1932/2010

Handyside v. The United Kingdom, Application No. 5493/72, ECtHR judgment of 7 December 1976

İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 December 2005)

Ladue v. Gilleo (1994) 512 U.S. 43 (U.S. Supreme Court)

Leyla Şahin v. Turkey , Application No 44774/98, ECtHR judgment [GC] of 10 November 2005

Otto-Preminger-Institut v. Austria , Application No. 13470/87, ECtHR judgment of 20 September 1995

R v. Oakes [1986] 1 SCR 103 (Canadian Supreme Court)

S.A.S v. France , Application No 43835/11, ECtHR judgment [GC] of 1 July 2014)

Thoma v. Luxembourg , Application No 38432/97, ECtHR judgment of 29 June 2001

United States v. O'Brien (1968) 391 U.S. 367 (U.S. Supreme Court)

Wingrove v. The United Kingdom, Application No. 17419/90, ECtHR judgment of 25 November 1996

Zaheeruddin v. State (1993) SCMR 1718 (Supreme Court of Pakistan)

Download references

Acknowledgements

The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.

Author information

Authors and affiliations.

Harvard Law School, Cambridge, MA, USA

Gehan Gunatilleke

University of Oxford, Oxford, UK

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Gehan Gunatilleke .

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ .

Reprints and permissions

About this article

Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

Download citation

Accepted : 26 October 2020

Published : 01 November 2020

Issue Date : March 2021

DOI : https://doi.org/10.1007/s12142-020-00608-8

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Freedom of expression
• Limitations on rights
• Duties of justice
• State authority
• Justification
• Public reason
• Find a journal
• Publish with us
• Track your research

Presentations made painless

• Get Premium

111 Freedom Of Expression Essay Topic Ideas & Examples

Inside This Article

Freedom of expression is a fundamental right that allows individuals to express their thoughts, opinions, and beliefs without fear of censorship or retaliation. It is a cornerstone of democracy and a crucial component of a free and open society. However, with this freedom comes responsibility, as it is important to use it in a respectful and constructive manner.

When it comes to writing about freedom of expression, there are countless topics and examples to explore. Here are 111 essay topic ideas and examples that can help you delve into this important issue:

• The importance of freedom of expression in a democratic society
• The history of freedom of expression and its evolution over time
• The role of freedom of expression in promoting social change and progress
• The relationship between freedom of expression and censorship
• The impact of social media on freedom of expression
• The limits of freedom of expression in cases of hate speech and incitement to violence
• The role of freedom of expression in protecting minority rights
• The intersection of freedom of expression and privacy rights
• The challenges of balancing freedom of expression with national security concerns
• The role of freedom of expression in promoting diversity and inclusivity
• The impact of technology on freedom of expression
• The role of freedom of expression in shaping public opinion
• The relationship between freedom of expression and academic freedom
• The impact of freedom of expression on political discourse
• The role of freedom of expression in promoting transparency and accountability
• The challenges of regulating online speech in the age of social media
• The impact of fake news on freedom of expression
• The role of satire and parody in exercising freedom of expression
• The impact of corporate censorship on freedom of expression
• The challenges of protecting freedom of expression in times of crisis or conflict
• The role of freedom of expression in fostering creativity and innovation
• The impact of defamation laws on freedom of expression
• The role of freedom of expression in promoting human rights
• The challenges of protecting freedom of expression in authoritarian regimes
• The impact of political correctness on freedom of expression
• The role of freedom of expression in promoting social justice and equality
• The impact of hate speech laws on freedom of expression
• The challenges of protecting freedom of expression in the digital age
• The role of freedom of expression in promoting cultural diversity
• The impact of government surveillance on freedom of expression
• The role of freedom of expression in promoting peaceful protest and dissent
• The challenges of protecting freedom of expression in the face of online harassment and cyberbullying
• The impact of blasphemy laws on freedom of expression
• The role of freedom of expression in promoting scientific inquiry and discovery
• The challenges of protecting freedom of expression in the face of political polarization
• The impact of self-censorship on freedom of expression
• The role of freedom of expression in promoting public debate and dialogue
• The challenges of protecting freedom of expression in the face of misinformation and propaganda
• The impact of copyright laws on freedom of expression
• The role of freedom of expression in promoting cultural exchange and understanding
• The challenges of protecting freedom of expression in the face of online disinformation campaigns
• The impact of surveillance capitalism on freedom of expression
• The role of freedom of expression in promoting environmental awareness and activism
• The challenges of protecting freedom of expression in the face of government surveillance
• The impact of online anonymity on freedom of expression
• The role of freedom of expression in promoting mental health awareness and destigmatization
• The challenges of protecting freedom of expression in the face of online hate speech
• The impact of cancel culture on freedom of expression
• The role of freedom of expression in promoting LGBTQ rights
• The challenges of protecting freedom of expression in the face of online harassment and doxxing
• The impact of platform moderation policies on freedom of expression
• The role of freedom of expression in promoting women's rights
• The challenges of protecting freedom of expression in the face of government censorship
• The impact of online echo chambers on freedom of expression
• The role of freedom of expression in promoting disability rights
• The challenges of protecting freedom of expression in the face of online extremism
• The role of freedom of expression in promoting racial justice
• The role of freedom of expression in promoting indigenous rights
• The role of freedom of expression in

Want to research companies faster?

Instantly access industry insights

Let PitchGrade do this for me

Leverage powerful AI research capabilities

We will create your text and designs for you. Sit back and relax while we do the work.

Explore More Content

• Privacy Policy
• Terms of Service

© 2024 Pitchgrade

• Entertainment
• Environment
• Information Science and Technology
• Social Issues

Home Essay Samples Law

Essay Samples on Freedom of Expression

The importance of freedom of speech: upholding democracy and fostering progress.

Why freedom of speech is important? In a world where ideas shape societies and opinions guide actions, the concept of freedom of speech holds immense significance. It serves as a cornerstone of democratic societies, fostering open discourse, promoting diverse viewpoints, and ultimately contributing to societal...

• Freedom of Expression
• Freedom of Speech

Freedom of Speech: Balancing Liberties and Responsibilities

Freedom of speech is a fundamental pillar of democratic societies, ensuring that individuals have the right to express their thoughts, opinions, and beliefs without fear of censorship or persecution. However, as with any right, there is the potential for abuse. This essay explores the delicate...

Freedom Is the Song of the Soul: A Symphony of Self-Expression

Introduction The concept of freedom is central to the human experience, and its relationship with the soul has been a frequent topic of discussion in various cultural, philosophical, and spiritual contexts. In this essay, we will explore the metaphorical notion that 'freedom is the song...

Freedom of Speech and Expression in Regards to Media

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” - John Milton, Areopagitica ‘Speech’, the only thing that makes us human, puts us highest in the order of species, an important quality that provides validation to...

• Civil Rights

Freedom of Expression as a Fundamental Right

Article 19 of the Universal Declaration of Human Rights states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”...

• American Government

Stressed out with your paper?

Consider using writing assistance:

• 100% unique papers
• 3 hrs deadline option

The Limits of the Freedom of Expression: Why It Is Not Absolute

As much as many people might desire it, the right to freedom of expression is not absolute. With rights come responsibilities, and there are acknowledged limitations on the privilege of free expression. The Universal Declaration of Human Rights (UDHR) states the importance of recognizing and...

The Right of Free Speech and Opinion

Over the past few decades, there has been a dramatic change in how people view free speech. Comedians, actors, and college campuses have all adapted to this. It is hard to tell whether we should allow absolute free speech or if we should draw the...

• Free Speech

Censorship In Our Time, Its Forms

You don’t have to go back to communist russia to experience it. You don’t have to be in apartheid South Africa to feel restricted by it. You don’t have to be in north korea to understand how important information is. More importantly, how powerful information...

History and Life Style of Alberta, a Province of Canada

Canada is one of the best country in the world. People came here from the various corners of the world for the jobs and for the good life style because Canadian life style is very famous in the world. There are 10 Provinces in the...

Best topics on Freedom of Expression

1. The Importance of Freedom of Speech: Upholding Democracy and Fostering Progress

2. Freedom of Speech: Balancing Liberties and Responsibilities

3. Freedom Is the Song of the Soul: A Symphony of Self-Expression

4. Freedom of Speech and Expression in Regards to Media

5. Freedom of Expression as a Fundamental Right

6. The Limits of the Freedom of Expression: Why It Is Not Absolute

7. The Right of Free Speech and Opinion

8. Censorship In Our Time, Its Forms

9. History and Life Style of Alberta, a Province of Canada

• First Amendment
• Criminal Justice
• Criminal Law
• Social Justice

Need writing help?

You can always rely on us no matter what type of paper you need

*No hidden charges

100% Unique Essays

Absolutely Confidential

Money Back Guarantee

By clicking “Send Essay”, you agree to our Terms of service and Privacy statement. We will occasionally send you account related emails

You can also get a UNIQUE essay on this or any other topic

Thank you! We’ll contact you as soon as possible.

DePauw Stories

Freedom of expression and academic freedom.

Five essays, with an introduction by Dr. Lori White, president of DePauw University

My best classes as an undergraduate involved sitting around a seminar table debating ideas. Those seminar discussions were robust, challenging, enlightening and hard. And they were only possible because of the collective diversity of students in the seminar who brought different perspectives – shaped by their individual backgrounds, experiences, ideologies and often intersecting identities. Moreover, I appreciated my professors for creating classroom environments that valued this freedom of expression, and who in turn modeled the passionate yet respectful conversations they had with their departmental colleagues whose scholarship and ideas were equally diverse (and sometimes in conflict with one another). At DePauw, this is the type of educational experience we want to provide for our students. We embrace these principles of free expression and academic freedom (i.e., the ability for faculty and students to pursue inquiry unfettered by restrictions) as essential catalysts for intellectual growth, critical thinking and the advancement of knowledge.

In our increasingly complex society, commitments to free expression and to diversity and inclusion are not opposing forces; they are mutually reinforcing pillars of a robust academic environment. These commitments are also necessary for a thriving democracy, one that welcomes and includes the many voices that are part of our incredible nation. At DePauw we are cultivating an intellectual ecosystem where viewpoint diversity flourishes, critical questions of our day are vigorously debated and students learn to engage in constructive disagreement under the guidance of invested campus partners, such as our Janet Prindle Institute for Ethics. These skills prepare students for success at DePauw and for meaningful participation in civic life as graduates. By championing the values of free expression, diversity and inclusivity, we are preparing our students to be thoughtful, engaged, ethical leaders of their generation who strengthen and renew our dynamic democracy.

The following essays contributed by our community members offer a breadth of perspectives and exemplify DePauw’s commitment to enriching intellectual dialogue. Each piece explores the necessity and challenge of fostering an environment where differing viewpoints can coexist and be debated respectfully. By sharing these insights, we aim to expand our comprehension and model the open, respectful dialogue essential for a liberal arts education that prepares students for meaningful participation in a diverse and democratic society.

The hedgehog and the fox

By Amity Reading, Raymond Pence Professor of English, associate professor of English

In 1953, Russian-born British philosopher Isaiah Berlin published a short piece titled “The Hedgehog and the Fox: An Essay on Tolstoy’s View of History.” Berlin’s premise is taken from an aphorism originally attributed to the seventh-century B.C.E. Greek poet Archilochus (“πόλλ’ οἶδ’ ἀλώπηξ, ἀλλ’ ἐχῖνος ἓν μέγα”), and later recorded by Dutch humanist Erasmus in his Adagia (c. 1500: “Multa novit vulpes, verum echinus unum magnum”): “a fox knows many things, but a hedgehog knows one big thing.”

Berlin uses the aphorism to situate Leo Tolstoy among other great authors of Weltliteratur (Plato, Dante, Shakespeare, Hegel, Molière, Proust, Joyce), but the underlying dichotomy is relevant far beyond the study of literature.

Hedgehogs, Berlin proposes, “relate everything to a single central vision, one system, less or more coherent or articulate,” while foxes “pursue many ends, often unrelated and even contradictory … moving on many levels, seizing upon the essence of a vast variety of experiences and objects.” Berlin freely admits the limits of the framework – “like all over-simple classifications of this type, the dichotomy becomes, if pressed, artificial, scholastic and ultimately absurd” – and yet he spends the remainder of the article demonstrating its valuable explanatory power. The point is not to prove that hedgehogs are wrong and foxes right, or vice versa, or even to definitively sort all great writers into one camp or the other. The point is rather to explore the various ways that great intellectuals across history have organized their thinking.

Since I first encountered Berlin’s essay years ago, I have endeavored to pass some of its wisdom on to my students. I teach courses that address topics in world literature, global medieval studies, and intellectual history, and I frequently introduce students to cultures and time periods that are fundamentally different from their own. The content of these courses is not immediately “relatable” to students, to use a term that is popular in today’s discourse. But that is precisely the point.

This is, in theory, the very raison d’etre of the university: to produce, refine, and disseminate knowledge. This includes knowledge in its most traditional sense (facts, data, information, etc.), but it also includes ways of knowing – what philosophers call epistemology and humanists might call ideology, culture, or discourse. My duty as a professor is to effectively guide students on their own journey of knowing.

For example, I teach a first-year seminar called “Skepticism and Belief” in which I ask students to suspend their judgment about individual beliefs and instead consider the very concept of belief itself. I encourage them: Don’t only ask, “is this true?” Ask instead, “what truth is here? How is this way of knowing valuable on its own terms?”

Likewise, in my recent course on global studies in the Red Sea region, I directly asked students to tackle the issue of campus protests staged around one of the most contentious political events of their lives to date – the conflict in Israel and Gaza. I split the class into two groups and I asked them to directly tackle the issue of free expression on campus from the perspectives of students, faculty and staff. Both groups were given the task of developing a campus public protest policy for an imaginary college or university – one group from the perspective of the most restrictive policy possible (no public gatherings, signs or permanent structures), the other group from the most permissive (all protests, signs and posters, and permanent structures allowed). Each group was asked to think about when and why they might be forced to modify their policies. Having them consider how they would react to campus protests from each of these subject positions, I asked them: What ethical values motivate your decision? How do you reconcile your position with the value of academic freedom espoused by colleges and universities the world over? How do you balance the need for safety (of persons and property) against the need for free expression? The results were astounding, as students demonstrated that they not only can but also want to engage in complex situations with nuanced appreciation. Both groups, as it so happened, arrived at roughly the same conclusion: free expression is of the utmost importance, but some clear policies must be in place to reasonably mitigate harm to people and property.

Given today’s bifurcated political and social climate, it is more important than ever to encourage students to truly dwell with views that differ from their own and to reflect critically on their personal positions. I recently attended an institute on academic freedom and freedom of expression held at the University of Chicago, and much of our conversation revolved around this very issue: how we reaffirm our shared intellectual values and strengthen our commitment to encouraging a plurality of viewpoints in our classrooms and on our campuses. To do this, we must all learn to understand and value both hedgehogs and foxes, and to become mindful of our own patterns of thinking in the process.

Lessons in being a good citizen and a good person

By Bodhi Hays ’25

I’ve always admired people who can hold their beliefs with passion.” While I wouldn’t call myself apathetic, I used to find it hard to hold fast to something in an argument. People make good points, a bit of self-doubt gets mixed in, and it’s easy to find yourself being swayed. Of course, we’ve all got things we do believe in strongly, but finding balance between stubbornness and an open mind is difficult. It’s that juggling act that makes free speech a meaningful value though, especially in an environment meant for learning like DePauw’s campus. For me, that balance came in my philosophy classes.

Everyone knows the stereotype of philosophy majors being argumentative to a fault. I’d say it’s how we show we care, but it’s just as often the case that someone’s got a chip on their shoulder. You can imagine this falling apart very quickly with upset students and annoyed professors all around, but philosophy as a discipline is geared toward it. Learning rules of logic and how to read sources in good faith obviously helps and is a necessary step for any conversation across different values, but the classroom setting is the most important. Spending a semester in a small group lets you learn how people think and get past the imaginary opponent you’re usually arguing with in your head. While this doesn’t mean everyone agrees, it does lead to a sense of respect in knowing that someone else’s values are coming from the same kind of thinking that brought you to your own.

That is probably the most impactful lesson I’ve taken away from my time at DePauw, that differences aren’t always the result of someone being wrong. While that isn’t always the case for questions of ethics and other values, many disagreements are built on equally good premises. Being able to acknowledge when the “other side” has a good point not only helps you understand your own beliefs, but fosters a way of seeing each other as a part of a social, political or academic community. When we stand by our beliefs and can defend them, we’re doing a service to ourselves and others by testing what we believe and seeing which answers ultimately stand out.

While DePauw and its students aren’t always perfect – sometimes it’s just too easy to shut something down for being too far out there – I think it has served me very well as an environment in which to learn how to defend what I believe while also keeping myself open to alternatives. The importance of free speech and properly engaging with others is a value I hope to carry into my professional life and one that I hope DePauw will continue to safeguard for students to come.

It’s the ideas that matter

By Erik Wielenberg, Blair Anderson and Martha Caroline Rieth Chair in Applied Ethics and professor of philosophy

You enter a room of strangers and say: “So, what do y’all think about abortion?” Lots of things might ensue; thoughtful discussion about abortion is unlikely to be one of them. Frank discussion of polarizing topics is crucial for intellectual growth and developing the leaders the world needs, but such discussion doesn’t just happen. Teaching a class at DePauw is like getting to know a person: each class has its own unique personality. And, just like with a person, hard conversations with a class require a foundation of trust. It takes a shared understanding that the classroom is a place for trying out ideas, making mistakes, perhaps inadvertently causing offense – and that you won’t be punished for holding the “wrong” views. DePauw’s small classes and public commitment to free expression help make such goals achievable.

I try to show my students that my aim is not to convert them to my views but rather to help them articulate their own views and to think – really think – about views that conflict with their own. Sometimes I can sense from their hesitant silence that a number of students disagree with what’s been said but are reluctant to say so. I may try to anticipate the source of their disagreement – “some of you may not buy that because…” – and that often loosens the tongues of the skeptics. If an important perspective lacks a student spokesperson, I’ll fill that role. The students come to understand that whether the view I speak for is my own is irrelevant – it’s the ideas that matter. And in order to determine which ideas make the most sense, it’s important to be able to consider all kinds of arguments without worrying about offending the professor or disagreeing with the predominant views of the day. Psychologists Jonathan Haidt and Fredrik Bjorklund write: “If you are able to honestly examine the moral arguments in favour of slavery and genocide (along with the much stronger arguments against them), then you are likely to be either a psychopath or a philosopher.” For them, that’s a descriptive claim; for me, it’s a mission statement – and part of the mission is to show my students how to think like a philosopher.

DePauw has work to do to ensure free expression on campus

By Jeffrey M. McCall, professor of communication

The Russian constitution provides for freedom of speech and of the press. The same is true for China and North Korea. Practically speaking, of course, it matters little what is written on paper in those countries. Their citizens are clearly not free to express themselves in speaking or writing. There are repercussions for the brave souls in those countries who are willing to speak up. Those punishments send a chilling message to anybody else who might think about expressing unapproved messages.

Albert Einstein understood the challenges associated with free speech when he wrote, “Laws alone cannot secure freedom of expression; in order that every man may present his views without penalty, there must be a spirit of tolerance in the entire population.”

Princeton University professor Keith Whittington has written extensively about the importance of free expression in academia. He wrote in the Fordham Law Review, “Ultimately, realizing free speech principles on college campuses is a matter of culture as much as it is a matter of policy.”

Pretty much every college these days has fancy policies saluting freedom of expression and free inquiry. Those policies, however, have been generally insufficient in creating and managing an environment that allows open, reasoned discourse and scholarship. Wide majorities (more than 80 percent) of students around the country, including DePauw students, report they self-censor in the classroom, in living units and on social media. The fear of being “canceled” for expressing one’s views certainly disrupts the atmosphere for learning and limits the rhetorical sphere.

Surveys show that nearly two-thirds of college students approve of shouting down speakers and about half are OK with blocking fellow students from attending a campus speech. Of course, many colleges avoid such possible tensions by just not inviting any speaker who might challenge prevailing campus orthodoxies.

It is difficult for colleges to create a robust environment for free expression when hiring practices require litmus tests on sociocultural topics and administrations engage in activist opining on various hot-button issues of the day. The effect is a campus climate curtailed by groupthink, a terrible condition for any institution that wants to promote wide-ranging debate. Noted political observer Walter Lippmann warned of this problem a century ago when he wrote, “Where all think alike, no one thinks very much.”

Any campus that truly wants a healthy free speech environment must test itself. That’s what some DePauw students attempted last semester when they distributed flyers protesting recent curricular changes on campus. They were summarily hauled through a campus disciplinary process.

DePauw has work to do to provide an environment in which free expression and deliberation happens. That work needs to be done in hiring, in the curriculum and in campus presentations. Cultural critic G.K. Chesterton once observed that civilization hinges on being able to settle things by debate. But the debate must be robust, otherwise, he warned, “Freedom of speech means practically that we must only talk about unimportant things.” Higher education has to be a place where the important things can truly be debated from multiple perspectives, with the hope that reason will prevail.

Leaping Forward: DePauw’s journey to free expression

By Town Oh, assistant professor of economics and management

In 2021, DePauw University ranked dead last on the Foundation for Individual Rights and Expression’s campus freedom of speech index, marking it as the worst campus for free exchange of ideas and inquiry. This issue is not unique to DePauw; other liberal arts colleges are in the same boat. This was a shock to me and I wanted to investigate why. Thanks to generous support from the Asher fellowship, I undertook a project to identify the institutional characteristics that correlate most with a poor speech climate. My analysis revealed that the two biggest predictors are: 1) being a private elite institution and 2) having a large presence of arts and humanities majors – both defining features of liberal arts colleges.

Although this paints a bleak picture for the future of liberal arts colleges, there are reasons to be hopeful. Liberal arts colleges like DePauw offer unique opportunities to address complex societal issues. I believe that behind the lower reported levels of freedom of speech is the noble effort to nudge students to engage in conversations on difficult and sensitive topics. Our curriculum, class size and majors are designed to do just that.

It is not necessarily that large public schools with big STEM programs are more tolerant of different ideas, but rather these schools often do not offer a venue to discuss difficult ideas. If you take the weights out of the gym, no one will ever leave the gym feeling like they struggled. The struggle that students face in expressing their opinions may be a positive sign that they are being challenged. Liberal arts colleges ought to capitalize on this strength and normalize the struggles students face while engaging in intensive dialogue, even when it may be offensive toward certain groups. If our aim is to help students navigate and make sense of a world that is full of offensive ideas and people, college should be the place where they learn how to handle these.

This is not to say that the school should just take a laissez-faire approach. There is a role that faculties and administrators can play in establishing minimal ground rules and providing a safe and fertile ground for free expression. I believe DePauw has made much progress on this end.

Fast forward to 2023, DePauw has made an unprecedented leap to 41 out of 248 on the aforementioned speech index, nearly being the highest among all liberal arts colleges. This is perhaps the result of concerted efforts to mend the speech code that was previously quite restrictive. The true measure of success will be evidenced by how our students actually engage in class discussions. I applaud the efforts that DePauw has taken so far (this magazine edition being one of them) and want to encourage faculties and students to continue to prioritize diversity of thoughts and expressions in the classroom.

Posted on: October 22, 2024

DePauw Magazine

A GATHERING PLACE FOR STORYTELLING ABOUT DEPAUW UNIVERSITY

Browse other stories, men's soccer - tigers tie top-seeded big red on the road, volleyball - depauw runs its ncac win streak to three with 3-0 victory over wittenberg, women's swimming & diving - stowe named ncac women’s swim and dive athlete of the week, more athletics, depauw and city of greencastle to host october 22 event for “growing green and gold together”, dr. jennifer mike joins depauw faculty as visiting global studies scholar, depauw launches the creative school, people & profiles, 11 alums make list of influential hoosiers, depauw welcomes dr. manal shalaby as fulbright scholar-in-residence, depauw names new vice president for communications and strategy and chief of staff, more people & profiles, have a story idea.

Whether we are writing about the intellectual challenge of our classrooms, a campus life that builds leadership, incredible faculty achievements or the seemingly endless stories of alumni success, we think DePauw has some fun stories to tell.

Communications & Marketing

101 E. Seminary St. Greencastle, IN, 46135-0037 [email protected]

News and Media

Faculty Experts Guide

News media: For help with a story, contact: Bob Weaver, Senior Director of Communications . [email protected] .

Home — Essay Samples — Social Issues — Freedom of Expression — The Concept of Freedom of Expression in The United States

The Concept of Freedom of Expression in The United States

• Categories: Freedom of Expression

About this sample

Words: 994 |

Published: Nov 8, 2019

Words: 994 | Pages: 2 | 5 min read

Table of contents

Introduction, defining freedom of expression, balancing freedom with responsibility, the challenge of abused freedom, government restrictions and security measures, preserving the right to freedom while ensuring safety.

• Stone, G. R. (2009). Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. W. W. Norton & Company.
• Chafee, Z. (1985). Free Speech in the United States. Harvard University Press.
• Sunstein, C. R. (2017). #Republic: Divided Democracy in the Age of Social Media. Princeton University Press.
• Tsesis, A. (2002). The Thirteenth Amendment and American Freedom: A Legal History. New York University Press.
• Volokh, E. (2012). Freedom of Speech and Intellectual Property: Some Thoughts After Eldred and Golan. UCLA Law Review, 59(4), 1125-1166.
• Fish, S. E. (1994). There's No Such Thing as Free Speech, and It's a Good Thing, Too. Oxford University Press.
• Sunstein, C. R. (2018). Free Speech and Democracy: A Primer. Harvard University Press.

Cite this Essay

To export a reference to this article please select a referencing style below:

Let us write you an essay from scratch

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

Get high-quality help

Prof Ernest (PhD)

Verified writer

• Expert in: Social Issues

+ 120 experts online

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

No need to pay just yet!

Related Essays

2 pages / 684 words

1 pages / 1084 words

1 pages / 559 words

2 pages / 801 words

Remember! This is just a sample.

You can get your custom paper by one of our expert writers.

121 writers online

Still can’t find what you need?

Browse our vast selection of original essay samples, each expertly formatted and styled

Related Essays on Freedom of Expression

The freedom of expression via the arts and music is a fundamental aspect of the natural human being. Through poetry, songs, and tales humans have the beautiful ability to skillfully communicate and sing aloud of carnal passions, [...]

The Freedom of the Press is nowhere mentioned in the Indian constitution. The Right to Freedom of Speech and Expression is provided in Article 19 of the Indian Constitution. It is believed that Freedom of Speech and Expression [...]

In the rapidly evolving digital age, the question of whether freedom of speech should be restricted on the internet has become a subject of intense debate. This argumentative essay delves into the multifaceted aspects [...]

Physician-assisted suicide is a topic that has been at the forefront of bioethics for many years now and yet no real consensus has been made on whether it should be a right afforded to all patients. Cases can be made for either [...]

Relief from pain, and preservation of health and or life is the basic role of medicine and all the technologies associated with it. However, in some instances where the disease is a terminal one with no known cure, pain is the [...]

On September 17th, 1787 after four long months of conflict and painstaking work 39 men signed the US Constitution, which from that point forward would be the supreme law of the land. The Constitution became the ultimate doctrine [...]

Related Topics

By clicking “Send”, you agree to our Terms of service and Privacy statement . We will occasionally send you account related emails.

Where do you want us to send this sample?

By clicking “Continue”, you agree to our terms of service and privacy policy.

Be careful. This essay is not unique

This essay was donated by a student and is likely to have been used and submitted before

Download this Sample

Free samples may contain mistakes and not unique parts

Sorry, we could not paraphrase this essay. Our professional writers can rewrite it and get you a unique paper.

Please check your inbox.

We can write you a custom essay that will follow your exact instructions and meet the deadlines. Let's fix your grades together!

Get Your Personalized Essay in 3 Hours or Less!

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

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

• Share full article

Advertisement

Supported by

Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

Before answering this question, read the full text of the amendment. What does it say about speech?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “ High Schools Threaten to Punish Students Who Kneel During Anthem ,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem. On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “ Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech ,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views. And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome. It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “ Supreme Court Strikes Down Law Barring Political Apparel at Polling Places ,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places. In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why? • Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why? • Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools? • Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)? • Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

Freedom of Speech and Expression Opinion Essay

It is indeed true that the freedom of individual expression largely emanates from the level of autonomy granted. When our individual autonomies are restricted, the freedom of expression is also affected. This implies that autonomy is the epitome of the freedom of expression in many ways.

Nonetheless, a certain level of restriction is usually applied by authorities in cases whereby the granted autonomy may lead to chaos or disruption of peace (de Zayas & Martín, 2012).

Some critics argue that individual autonomies may be restricted on the basis of persuasive speech. However, expressive statements that are too persuasive may not necessarily be stopped by the government except in extraordinary situations when such speeches are meant to cause fear. If negative consequences are brought about by a speech, then it is justifiable for the authorities to inject some restrictions (Kendrick, 2014).

Needless to say, offensive speech cannot be allowed by the government because it does not go hand in hand with the tenets of true autonomy. It can be proper for a speech to be permitted even if it is persuasive so long as it does not offend others. Perhaps, this is the point of diversion between autonomy and restriction of the freedom of expression.

There are myriads of laws that have been established with the aim of reviewing the impacts of freedom of speech. A speech might be considered to be offensive in various ways. In some cases, individuals are offended by the freedom of speech if they suspect that the impacts will be negative (Temperman, 2011). Owing to the persuasion principle, the freedom of speech cannot be easily suppressed.

It is also interesting to mention that a given piece of speech can be offensive without necessarily being persuasive. In other terms, a speech might be intrinsically offensive (McLaughlin, Uggen & Blackstone, 2012).

Self-fulfillment of every individual is the main factor that drives the freedom of speech and expression. The latter is also instrumental when seeking the autonomy of individuals. Freedom of opinion and expression is one of the crucial political freedoms and fundamental freedoms practiced globally (Claybourn, 2011). It goes hand in hand with freedom of information and specifically freedom of the press.

The latter refers to the freedom for a newspaper owner to say or be silent about what he sees fit in his journal. It is subject to response by the courts for libel or slander. Defamation and slander are the main reasons why restrictions on the notion of freedom of expression for any public speech exists (Temperman, 2011).

For some scholars like Kant, freedom of expression is necessary since it elevates the inner thoughts of an individual. Of course, the freedom to speak or write can be taken away by a higher power. We can say that this external power that robs men the freedom to communicate their mind publicly, also removes the freedom of thought.

The latter is a clear indication that the freedom of speech and expression have notable clash with the autonomy prescribed by individuals. One of the ways that can be used to bridge the gap or balance the conflict is the adoption of internationally recognized pieces of legislation that bind every nation (Temperman, 2011). For instance, the freedom of opinion should be presumed as a basic right to every individual.

The Human Rights declaration does not specify the particular conditions or restrictions on the freedom of expression. Nonetheless, a number of jurisdictions under the umbrella of the United Nations and countries bound by the declaration tend to restrict this freedom since it prohibits the language that agitate for racial, national or religious hatred (Temperman, 2011).

Freedom of expression is often the first freedom eliminated in totalitarian regimes. Since the late twentieth century, the emergence of various forms of mass communication such as the Internet alongside the inability of states to adapt to such technological developments have led to several challenges.

As a result, there has been growing need to control the freedom of expression and take it over completely as it is the case with a country like China (Temperman, 2011).

Freedom of expression is subject to limitations that are prescribed by law and are deemed necessary to respect the rights and reputation of others. This means that restrictions are often imposed on the freedom of expression whenever deemed necessary.

For security reasons (for example repression of incitement to commit crimes or offenses), restriction on the freedom of expression may be imposed and consequently affect the autonomy of individuals. Second, protection of the rights of individuals may take place when there are possibilities of repression of public insult and defamation, or the fight against racial discrimination and denial.

When individuals or institutions can intervene formally to limit expression outside the restricted case, we talk about censorship. Sex and violence are among the topics covered most often by censorship.

Several states also have laws against blasphemy, that are considered by several secular activists as an attack on the freedom of expression. Therefore, freedom of expression remains restricted in several jurisdictions (de Zayas & Martín, 2012).

Freedom of expression also encounters a severe limitation with respect to private life and hence the autonomy of an individual.

Freedom of expression is perhaps not the first or most fundamental freedom (freedom of movement is the first freedom or the freedom that determines priority and takes precedence over others). Freedom of expression has been dismissed by some political theorists as a Western perspective or philosophy (Temperman, 2011).

During the 1960s, the freedom of expression was sought by a significant number of pressure groups following attempts to recurrent pornographic or immoral literature materials that were censored. Today, there are myriads of legislations in place that address offensive terms that may be used against minority groups or religions.

Regularly, writers and publishers are concerned about the resurgence of censorship. The reason given in most cases is not pornography, but hate speech. In the United States, a new anti paparazzi came into effect in California since January 1, 2010. It has been claimed by the actress Jennifer Aniston and supported by several other celebrities.

Sexual harassment is obviously a criminal offense punishable by law. If committed by an employee; it is liable to disciplinary action that should be taken by the employer. In the context of labor relations, sexual harassment can take many forms: blackmail hiring or promotion, threats of retaliation if a victim refuses to give in to sexual advances, and so on (de Zayas & Martín, 2012).

The harasser can be the employer, a colleague of the victim, a recruiting firm or a customer of an organization. It is the responsibility of employers to take all necessary steps to prevent acts of sexual harassment, stop it and even inflict punishment to the offenders. Sexual harassment entails the act of imposing an indecent act of sexual behavior and tendencies on a person.

This may take place repeatedly and eventually culminate into impairing of a person’s dignity. Sexual harassment may also be executed verbally to the detriment of the victim’s personal values. An employee can be intimidated by all forms of sexual harassment and finally limit his or her autonomy. An individual may also be grossly humiliated in a situation that entails sexual harassment.

The scope of protection of victims and witnesses of sexual harassment in the context of the employment relationship is one of the pointers that can be put into consideration when exploring the issue of autonomy and the freedom of expression or speech. Although there are labor laws in place, it is the responsibility of employers to make sure that victims of sexual harassment are safeguarded.

What sanctions can be taken against the perpetrator of sexual harassment? In any case, individuals who have been sexually harassed at workplace may lack the autonomy to perform as per the expected standards since they fear losing their jobs (de Zayas & Martín, 2012).

Labor inspectors are in particular responsible for ensuring compliance with the provisions of the Labor Code and other legal requirements relating to employment (Claybourn, 2011). They are responsible, in conjunction with the officers and agents of the judicial police, to report violations stated in the labor laws provisions.

Acts of sexual harassment committed by an employee should be fully subjected to disciplinary sanction by the employer.

I believe that there is a difference in ideology between the perspectives exemplified in the above section. Therefore, the freedom of expression and autonomy of individuals should be exercised within the provisions of the law in order to bridge the gap or minimize the prevailing conflicts.

Claybourn, M. (2011). Relationships between moral disengagement, work characteristics and workplace harassment. Journal of Business Ethics, 100 (2), 283-301.

de Zayas, A., & Martín, Ã. R. (2012). Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment No. 34 of the UN Human Rights Committee. Netherlands International Law Review, 59 (3), 425-454.

Kendrick, L. (2014). Free Speech and Guilty Minds. Columbia Law Review, 114 , 1255- 1295.

McLaughlin, H., Uggen, C., & Blackstone, A. (2012). Sexual harassment, workplace authority, and the paradox of power. American Sociological Review, 77 (4), 625- 647.

Temperman, J. (2011). Freedom of expression and religious sensitivities in pluralist societies: Facing the challenge of extreme speech. Brigham Young University Law Review, 2011 (3), 729-757.

• Capitalism and Colonialism
• Robert Brenner on the Development of Capitalism
• Defamation: Comparative Law and Practice
• Censorship in China: History and Controlling
• Censorship: For the People, or for Controlling
• Neoliberal Approach to Assessing Sustainability
• Aimé Césaire's Discourse on Colonialism
• Utilitarianism in Government
• Principles of Democratic Structuring
• Rational Choice, Pluralist and Marxist Theories’ Contributions to the Study of Public Policy
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2019, June 23). Freedom of Speech and Expression. https://ivypanda.com/essays/freedom-of-speech-and-expression/

"Freedom of Speech and Expression." IvyPanda , 23 June 2019, ivypanda.com/essays/freedom-of-speech-and-expression/.

IvyPanda . (2019) 'Freedom of Speech and Expression'. 23 June.

IvyPanda . 2019. "Freedom of Speech and Expression." June 23, 2019. https://ivypanda.com/essays/freedom-of-speech-and-expression/.

1. IvyPanda . "Freedom of Speech and Expression." June 23, 2019. https://ivypanda.com/essays/freedom-of-speech-and-expression/.

Bibliography

IvyPanda . "Freedom of Speech and Expression." June 23, 2019. https://ivypanda.com/essays/freedom-of-speech-and-expression/.

• To find inspiration for your paper and overcome writer’s block
• As a source of information (ensure proper referencing)
• As a template for you assignment

IvyPanda uses cookies and similar technologies to enhance your experience, enabling functionalities such as:

• Basic site functions
• Ensuring secure, safe transactions
• Secure account login
• Remembering account, browser, and regional preferences
• Remembering privacy and security settings
• Analyzing site traffic and usage
• Personalized search, content, and recommendations
• Displaying relevant, targeted ads on and off IvyPanda

Please refer to IvyPanda's Cookies Policy and Privacy Policy for detailed information.

Certain technologies we use are essential for critical functions such as security and site integrity, account authentication, security and privacy preferences, internal site usage and maintenance data, and ensuring the site operates correctly for browsing and transactions.

Cookies and similar technologies are used to enhance your experience by:

• Remembering general and regional preferences
• Personalizing content, search, recommendations, and offers

Some functions, such as personalized recommendations, account preferences, or localization, may not work correctly without these technologies. For more details, please refer to IvyPanda's Cookies Policy .

To enable personalized advertising (such as interest-based ads), we may share your data with our marketing and advertising partners using cookies and other technologies. These partners may have their own information collected about you. Turning off the personalized advertising setting won't stop you from seeing IvyPanda ads, but it may make the ads you see less relevant or more repetitive.

Personalized advertising may be considered a "sale" or "sharing" of the information under California and other state privacy laws, and you may have the right to opt out. Turning off personalized advertising allows you to exercise your right to opt out. Learn more in IvyPanda's Cookies Policy and Privacy Policy .

What is the role of free speech in a democratic society?

Book co-edited by prof. geoffrey stone examines evolution, future of first amendment.

Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in  Abrams v. United States , one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.

That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America. 

The Free Speech Century  (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.

“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”

Stone, JD’71, has spent much of his career examining free speech— a topic he first became passionate about as a University of Law School student.

The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,  New York Times Co. v. United States.  The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the  New York Times  and  Washington Post  to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.

But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”

—Adapted from an article that first appeared on the University of Chicago Law School website.

Related content

• Examining the importance of free expression
• Podcast: SCOTUS Nears Unimaginable Era with Geoffrey Stone

Publications

The Free Speech Century

Geoffrey R. Stone, Lee C. Bollinger

Get more at UChicago news delivered to your inbox.

Top Stories

• UChicago scientists invent faster method to make advanced membranes for water filters
• UChicago part of cross-Chicago university collaboration to map the brain
• Selwyn Rogers elected to National Academy of Medicine

Related Topics

Latest news, lessons from the academy museum of motion pictures.

Botany Pond

Botany Pond restoration revitalizes beloved campus landmark

Leading experts to gather for seventh annual Chicago Quantum Summit Oct. 21-22

Astronomy and Astrophysics

The long and strange lives of Enrico Fermi’s accelerator building at the University of Chicago

Go 'Inside the Lab' at UChicago

Explore labs through videos and Q&As with UChicago faculty, staff and students

Humanities Day

Prof. Philip V. Bohlman to address ‘doing good’ through music during Humanities Day keynote

Dispatches from Abroad

From Andean forests to ancient sites in Turkey, UChicagoans spent the summer abroad

Around uchicago.

Nobel Prize

UChicago alum John Jumper shares Nobel Prize for model to predict protein structures

Two uchicago scientists honored with 2024 department of energy early career awa….

New Program

UChicago offers new master’s program in environmental science

Artificial Intelligence

NSF, Simons Foundation launch $20 million National AI Research Institute in Ast…

James A. Robinson shares 2024 Nobel Prize for research on global inequality

Big Brains podcast

Big Brains podcast: 2024 Nobel laureate explains what makes countries fail or succeed, with James A. Robinson

Film History

“Throughout my time at UChicago, I’ve sought to provide opportunities to share scholarship with the public”

2024 South Side Science Festival offers up fun and inspiration

Browse Course Material

Course info, instructors.

• Prof. Alex Byrne
• Prof. Brad Skow

Departments

• Linguistics and Philosophy
• Political Science
• Comparative Media Studies/Writing

As Taught In

• Political Philosophy

Learning Resource Types

Liberalism, toleration, and freedom of speech, freedom of expression: pro, session 1: overview of the class: content; principles of civil discourse.

• No readings assigned

Session 2: The case against prior restraint

• Milton, John. Excerpts from Areopagitica . Arc Manor, 2008, pp. 10 (“If ye be…”) – 11 (“…of our presbyters”), 24 (“Since therefore the knowledge…”) – 27 (“…can overtake her”), and 55 (“And now the time…”) – 56 (“…wars of Truth”). ISBN: 9781604501513. 
• Rosenberg, Ian. “ Stormy Daniels, Prior Restraints, and the Pentagon Papers .” Chapter 5 in The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms. NYU Press, 2021. ISBN: ‎9781479801565. 
• Abrams, Floyd. Chapter 5 in The Soul of the First Amendment . Yale University Press, 2018. ISBN: ‎9780300234206.

Session 3: The First Amendment

• Abrams et al. v. United States (1919) , Holmes dissent.
• Whitney v. People of State of California (1927) , Brandeis concurring.
• United States v. Schwimmer (1929) , Holmes dissent.
• Gitlow v. People of the State of New York (1925) , Holmes dissent.
• Paul Robert Cohen, Appellant, v. State of California (1971) , Harlan ruling.

Session 4: More on the First Amendment

Excerpts from decisions and dissents:

• Citizens United, Appellant, v. Federal Election Commission (2010) (PDF) , Stevens opinion, pp. 75–77.
• 303 Creative LLC et al. v. Elenis et al. (2022) (PDF)  

Session 5: J. S. Mill’s defense of free speech

• Mill, John Stuart. “Of the Liberty of Thought and Discussion.” (PDF) Chapter 2 in On Liberty and Other Essays . Edited by David Bromwich and George Kateb. Yale University Press, 2003. ISBN: 9780300096101. 

Session 6: The duty to speak your mind

• Joshi, Hrishikesh. Excerpts from “The Epistemic Commons.” Chapter 1 in Why It’s OK to Speak Your Mind. Routledge, 2021. ISBN: ‎9780367141721. [Preview with Google Books ]
• ———. Excerpts from “A Duty to Speak Your Mind.” Chapter 2 in Why It’s OK to Speak Your Mind. Routledge, 2021. ISBN: ‎9780367141721. [Preview with Google Books ]
• ———. Excerpts from “Challenges and Temptations.” Chapter 3 in Why It’s OK to Speak Your Mind. Routledge, 2021. ISBN: ‎9780367141721. 

Session 7: Non-government censorship and “cancel culture”

• Douthat, Ross. “ 10 Theses About Cancel Culture ,” New York Times , July 14, 2020.
• Applebaum, Anne. “ The New Puritans .” The Atlantic , October 2021.
• “ Chappelle Slams Cancel Culture amid Netflix Transgender Furor .” BBC News. October 26, 2021. 
• Strauss, Valerie. “ San Francisco School Board Votes to Rename Dozens of Schools—including Washington and Lincoln ,” Washington Post , January 29, 2021.

Session 8: Wrap-up discussion of non-government censorship and “cancel culture”

Freedom of expression: limits and opposition, session 9: against free expression.

• Alexander, Larry. “General Justifying Theories of Freedom of Expression.” Chapter 7 in Is There a Right of Freedom of Expression? Cambridge University Press, 2005. ISBN: ‎9780521529846. 

Session 10: Defending hate speech restrictions

• Waldron, Jeremy. “The Appearance of Hate.” Chapter 4 in The Harm in Hate Speech . Harvard University Press, 2014. ISBN: ‎9780674416864. 

Session 11: Hate speech restrictions and political legitimacy

• Waldron, Jeremy. “Ronald Dworkin and the Legitimacy Argument.” Chapter 7 in The Harm in Hate Speech . Harvard University Press, 2014. ISBN: ‎9780674416864. 

Session 12: Hate speech and silencing

• West, Caroline. “ Words That Silence? Freedom of Expression and Racist Hate Speech .” In Speech & Harm: Controversies Over Free Speech . Edited by Ishani Maitra and Mary Kate McGowan. Oxford University Press, 2012. ISBN: ‎9780199236275. 

Session 13: Hate speech and silencing, cont’d; offensive expression

• Feinberg, Joel. “Offensive Nuisances.” Chapter 7 in Offense to Others: The Moral Limits of the Criminal Law . Oxford University Press, 1988. ISBN: ‎9780195052152. [Preview with Google Books ]
• ———. “Profound Offense.” Chapter 9 in Offense to Others: The Moral Limits of the Criminal Law . Oxford University Press, 1988. ISBN: ‎9780195052152. 

Session 14: Offensive expression, cont’d; pornography and harm

• Cohen, Joshua. “Freedom, Equality, Pornography.” (PDF) Chapter 11 in Prostitution and Pornography: Philosophical Debate about the Sex Industry . Edited by Jessica Spector. Stanford University Press, 2006. ISBN: ‎9780804749381.

Session 15: Pornography and harm, cont’d

• Cohen, Joshua. “Freedom, Equality, Pornography.” (PDF) Chapter 11 in Prostitution and Pornography: Philosophical Debate about the Sex Industry in the U.S . Edited by Jessica Spector. Stanford University Press, 2006. ISBN: ‎9780804749381. 

Session 16: Pornography and silencing

• Langton, Rae. “Speech Acts and Unspeakable Acts.” Chapter 1 in Sexual Solipsism: Philosophical Essays on Pornography and Objectification. Oxford University Press, 2009. ISBN: ‎9780199551453. [Preview with Google Books ]

Session 17: In-class debate

Liberalism, paternalism, conservatism, session 18: new dangers of free speech in the information age.

• Whitehouse, Sheldon. “ Section 230 Reforms .” Chapter 7 in Social Media, Freedom of Speech, and the Future of our Democracy . Edited by Lee C. Bollinger and Geoffrey R. Stone. Oxford University Press, 2022. ISBN: ‎9780197621097.

Session 19: Liberalism in 5 minutes; paternalism tentatively defended

• Glod, William. “What the *Bleep* Do We Know?” Chapter 1 in Why it’s OK to Make Bad Choices . Routledge, 2020. ISBN: 9780367195175. [Preview with Google Books ]

Session 20: Anti-paternalism: the knowledge problem

• Glod, William. “How Do We Know What Other People Are Up To?” Chapter 2 in Why it’s OK to Make Bad Choices . Routledge, 2020. ISBN: 9780367195175. 

Session 21: Anti-paternalism: autonomy; unintended consequences

• Glod, William. “What If I Really Am Making Bad Choices?” Chapter 3 in Why it’s OK to Make Bad Choices . Routledge, 2020. ISBN: 9780367195175.
• ———. “Why We Should Be Careful.” Chapter 7 in Why it’s OK to Make Bad Choices . Routledge, 2020. ISBN: 9780367195175.

Session 22: Conservatism: against autonomy

• Kekes, John. “The Prevalence of Evil.” Chapter 2 in Against Liberalism . ‎Cornell University Press, 1997. ISBN: ‎9780801433610. 

Session 23: Liberalism and immigration

• Joshi, Hrishikesh. “For (Some) Immigration Restrictions.” (PDF) In Ethics, Left and Right: The Moral Issues That Divide Us . Edited by Bob Fischer. Oxford University Press, 2019. ISBN: ‎9780190882785.

Session 24: Conservatism: against gay marriage

• Wax,  Amy L. Excerpts from “The Conservative’s Dilemma: Traditional Institutions, Social Change, and Same-Sex Marriage.” (PDF) San Diego Law Review 42 (2005): 1059–1104.

Session 25: Religious freedom I. The separation of church and state, pro and con

• Excerpts from St. Augustine, “Letter to Vincentius.” (PDF)
• Excerpts from Thomas Jefferson, The Virginia Statue for Religious Freedom. (PDF)
• Excerpts from Locke, Essay on Toleration . (PDF)

Session 26: Religious freedom II. Are religious exemptions to general laws justified?

• Leiter, Brian. Excerpts from Why Tolerate Religion? Princeton University Press, 2014. ISBN: ‎9780691163543. [Preview with Google Books ]

Session 27: Closing discussion

You are leaving MIT OpenCourseWare

• Table of Contents
• Random Entry
• Chronological
• Editorial Information
• About the SEP
• Editorial Board
• How to Cite the SEP
• Special Characters
• Advanced Tools
• Support the SEP
• PDFs for SEP Friends
• Make a Donation
• SEPIA for Libraries
• Entry Contents

Bibliography

Academic tools.

• Friends PDF Preview
• Author and Citation Info
• Back to Top

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.

• Alexander, Larry [Lawrence], 1995, “Free Speech and Speaker’s Intent”, Constitutional Commentary , 12(1): 21–28.
• –––, 2005, Is There a Right of Freedom of Expression? , (Cambridge Studies in Philosophy and Law), Cambridge/New York: Cambridge University Press.
• Alexander, Lawrence and Paul Horton, 1983, “The Impossibility of a Free Speech Principle Review Essay”, Northwestern University Law Review , 78(5): 1319–1358.
• Alexy, Robert, 2003, “Constitutional Rights, Balancing, and Rationality”, Ratio Juris , 16(2): 131–140. doi:10.1111/1467-9337.00228
• Amdur, Robert, 1980, “Scanlon on Freedom of Expression”, Philosophy & Public Affairs , 9(3): 287–300.
• Arneson, Richard, 2009, “Democracy is Not Intrinsically Just”, in Justice and Democracy , Keith Dowding, Robert E. Goodin, and Carole Pateman (eds.), Cambridge: Cambridge University Press, 40–58.
• Baker, C. Edwin, 1989, Human Liberty and Freedom of Speech , New York: Oxford University Press.
• –––, 2009, “Autonomy and Hate Speech”, in Hare and Weinstein 2009: 139–157 (ch. 8). doi:10.1093/acprof:oso/9780199548781.003.0009
• Balkin, Jack M., 2004, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society”, New York University Law Review , 79(1): 1–55.
• –––, 2009, “The Future of Free Expression in a Digital Age Free Speech and Press in the Digital Age”, Pepperdine Law Review , 36(2): 427–444.
• –––, 2018, “Free Speech Is a Triangle Essays”, Columbia Law Review , 118(7): 2011–2056.
• –––, 2021, “How to Regulate (and Not Regulate) Social Media”, Journal of Free Speech Law , 1(1): 71–96. [ Balkin 2021 available online (pdf) ]
• Barendt, Eric M., 2005, Freedom of Speech , second edition, Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199225811.001.0001
• Barnes, Michael Randall, 2022, “Online Extremism, AI, and (Human) Content Moderation”, Feminist Philosophy Quarterly , 8(3/4): article 6. [ Barnes 2022 available online ]
• Beauharnais v. Illinois 343 U.S. 250 (1952).
• Billingham, Paul and Tom Parr, 2020, “Enforcing Social Norms: The Morality of Public Shaming”, European Journal of Philosophy , 28(4): 997–1016. doi:10.1111/ejop.12543
• Blasi, Vincent, 1977, “The Checking Value in First Amendment Theory”, American Bar Foundation Research Journal 3: 521–649.
• –––, 2004, “Holmes and the Marketplace of Ideas”, The Supreme Court Review , 2004: 1–46.
• Brettschneider, Corey Lang, 2012, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality , Princeton, NJ: Princeton University Press.
• Brietzke, Paul H., 1997, “How and Why the Marketplace of Ideas Fails”, Valparaiso University Law Review , 31(3): 951–970.
• Bollinger, Lee C., 1986, The Tolerant Society: Free Speech and Extremist Speech in America , New York: Oxford University Press.
• Bonotti, Matteo and Jonathan Seglow, 2022, “Freedom of Speech: A Relational Defence”, Philosophy & Social Criticism , 48(4): 515–529.
• Brandenburg v. Ohio 395 U.S. 444 (1969).
• Brink, David O., 2001, “Millian Principles, Freedom of Expression, and Hate Speech”, Legal Theory , 7(2): 119–157. doi:10.1017/S1352325201072019
• Brison, Susan J., 1998, “The Autonomy Defense of Free Speech”, Ethics , 108(2): 312–339. doi:10.1086/233807
• Brison, Susan J. and Katharine Gelber (eds), 2019, Free Speech in the Digital Age , Oxford: Oxford University Press. doi:10.1093/oso/9780190883591.001.0001
• Brown, Étienne, 2023, “Free Speech and the Legal Prohibition of Fake News”, Social Theory and Practice , 49(1): 29–55. doi:10.5840/soctheorpract202333179
• Buchanan, Allen E., 2013, The Heart of Human Rights , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199325382.001.0001
• Cepollaro, Bianca, Maxime Lepoutre, and Robert Mark Simpson, 2023, “Counterspeech”, Philosophy Compass , 18(1): e12890. doi:10.1111/phc3.12890
• Chaplinsky v. New Hampshire 315 U.S. 568 (1942).
• Cohen, Joshua, 1993, “Freedom of Expression”, Philosophy & Public Affairs , 22(3): 207–263.
• –––, 1997, “Deliberation and Democratic Legitimacy”, in Deliberative Democracy: Essays on Reason and Politics , James Bohman and William Rehg (eds), Cambridge, MA: MIT Press, 67–92.
• Dworkin, Ronald, 1981, “Is There a Right to Pornography?”, Oxford Journal of Legal Studies , 1(2): 177–212. doi:10.1093/ojls/1.2.177
• –––, 1996, Freedom’s Law: The Moral Reading of the American Constitution , Cambridge, MA: Harvard University Press.
• –––, 2006, “A New Map of Censorship”, Index on Censorship , 35(1): 130–133. doi:10.1080/03064220500532412
• –––, 2009, “Forward.” In Extreme Speech and Democracy , ed. J. Weinstein and I. Hare, pp. v-ix. Oxford: Oxford University Press.
• –––, 2013, Religion without God , Cambridge, MA: Harvard University Press.
• Douek, Evelyn, 2021, “Governing Online Speech: From ‘Posts-as-Trumps’ to Proportionality and Probability”, Columbia Law Review , 121(3): 759–834.
• –––, 2022a, “Content Moderation as Systems Thinking”, Harvard Law Review , 136(2): 526–607.
• –––, 2022b, “The Siren Call of Content Moderation Formalism”, in Social Media, Freedom of Speech, and the Future of Our Democracy , Lee C. Bollinger and Geoffrey R. Stone (eds.), New York: Oxford University Press, 139–156 (ch. 9). doi:10.1093/oso/9780197621080.003.0009
• Ely, John Hart, 1975, “Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis”, Harvard Law Review , 88: 1482–1508.
• Emerson, Thomas I., 1970, The System of Freedom of Expression , New York: Random House.
• Epstein, Richard A., 1992, “Property, Speech, and the Politics of Distrust”, University of Chicago Law Review , 59(1): 41–90.
• Estlund, David, 2008, Democratic Authority: A Philosophical Framework , Princeton: Princeton University Press.
• Feinberg, Joel, 1984, The Moral Limits of the Criminal Law Volume 1: Harm to Others , New York: Oxford University Press. doi:10.1093/0195046641.001.0001
• –––, 1985, The Moral Limits of the Criminal Law: Volume 2: Offense to Others , New York: Oxford University Press. doi:10.1093/0195052153.001.0001
• Fish, Stanley Eugene, 1994, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too , New York: Oxford University Press.
• Fox, Gregory H. and Georg Nolte, 1995, “Intolerant Democracies”, Harvard International Law Journal , 36(1): 1–70.
• Gelber, Katharine, 2010, “Freedom of Political Speech, Hate Speech and the Argument from Democracy: The Transformative Contribution of Capabilities Theory”, Contemporary Political Theory , 9(3): 304–324. doi:10.1057/cpt.2009.8
• Gilmore, Jonathan, 2011, “Expression as Realization: Speakers’ Interests in Freedom of Speech”, Law and Philosophy , 30(5): 517–539. doi:10.1007/s10982-011-9096-z
• Gordon, Jill, 1997, “John Stuart Mill and the ‘Marketplace of Ideas’:”, Social Theory and Practice , 23(2): 235–249. doi:10.5840/soctheorpract199723210
• Greenawalt, Kent, 1989, Speech, Crime, and the Uses of Language , New York: Oxford University Press.
• Greene, Amanda R. and Robert Mark Simpson, 2017, “Tolerating Hate in the Name of Democracy”, The Modern Law Review , 80(4): 746–765. doi:10.1111/1468-2230.12283
• Greene, Jamal, 2021, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart , Boston: Houghton Mifflin Harcourt.
• Gutmann, Amy and Dennis Thompson, 2008, Why Deliberative Democracy? Princeton: Princeton University Press.
• Habermas, Jürgen, 1992 [1996], Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats , Frankfurt am Main: Suhrkamp. Translated as Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy , William Rehg (trans.), (Studies in Contemporary German Social Thought), Cambridge, MA: MIT Press, 1996.
• Hare, Ivan and James Weinstein (eds), 2009, Extreme Speech and Democracy , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199548781.001.0001
• Hart, H. L. A., 1955, “Are There Any Natural Rights?”, The Philosophical Review , 64(2): 175–191. doi:10.2307/2182586
• Heinze, Eric, 2016, Hate Speech and Democratic Citizenship , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780198759027.001.0001
• Heyman, Steven J., 2009, “Hate Speech, Public Discourse, and the First Amendment”, in Hare and Weinstein 2009: 158–181 (ch. 9). doi:10.1093/acprof:oso/9780199548781.003.0010
• Hohfeld, Wesley, 1917, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26(8): 710–770.
• Holder v. Humanitarian Law Project 561 U.S. 1 (2010).
• Hornsby, Jennifer, 1995, “Disempowered Speech”, Philosophical Topics , 23(2): 127–147. doi:10.5840/philtopics199523211
• Howard, Jeffrey W., 2019a, “Dangerous Speech”, Philosophy & Public Affairs , 47(2): 208–254. doi:10.1111/papa.12145
• –––, 2019b, “Free Speech and Hate Speech”, Annual Review of Political Science , 22: 93–109. doi:10.1146/annurev-polisci-051517-012343
• –––, 2021, “Terror, Hate and the Demands of Counter-Speech”, British Journal of Political Science , 51(3): 924–939. doi:10.1017/S000712341900053X
• –––, forthcoming a, “The Ethics of Social Media: Why Content Moderation is a Moral Duty”, Journal of Practical Ethics .
• Howard, Jeffrey W. and Robert Simpson, forthcoming b, “Freedom of Speech”, in Issues in Political Theory , fifth edition, Catriona McKinnon, Patrick Tomlin, and Robert Jubb (eds), Oxford: Oxford University Press.
• Husak, Douglas N., 1985, “What Is so Special about [Free] Speech?”, Law and Philosophy , 4(1): 1–15. doi:10.1007/BF00208258
• Jacobson, Daniel, 2000, “Mill on Liberty, Speech, and the Free Society”, Philosophy & Public Affairs , 29(3): 276–309. doi:10.1111/j.1088-4963.2000.00276.x
• Kendrick, Leslie, 2013, “Speech, Intent, and the Chilling Effect”, William & Mary Law Review , 54(5): 1633–1692.
• –––, 2017, “Free Speech as a Special Right”, Philosophy & Public Affairs , 45(2): 87–117. doi:10.1111/papa.12087
• Klonick, Kate, 2018, “The New Governors”, Harvard Law Review 131: 1589–1670.
• Knight First Amendment Institute v. Trump 928 F.3d 226 (2019).
• Kramer, Matthew H., 2021, Freedom of Expression as Self-Restraint , Oxford: Oxford University Press.
• Lakier, Genevieve, 2015, “The Invention of Low-Value Speech”, Harvard Law Review , 128(8): 2166–2233.
• Landemore, Hélène, 2013, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many , Princeton/Oxford: Princeton University Press.
• Langton, Rae, 1993, “Speech Acts and Unspeakable Acts”, Philosophy & Public Affairs , 22(4): 293–330.
• –––, 2018, “The Authority of Hate Speech”, in Oxford Studies in Philosophy of Law (Volume 3), John Gardner, Leslie Green, and Brian Leiter (eds.), Oxford: Oxford University Press: ch. 4. doi:10.1093/oso/9780198828174.003.0004
• Lazar, Seth, forthcoming, “Legitimacy, Authority, and the Public Value of Explanations”, in Oxford Studies in Political Philosophy (Volume 10), Steven Wall (ed.), Oxford: Oxford University Press.
• –––, forthcoming, Connected by Code: Algorithmic Intermediaries and Political Philosophy, Oxford: Oxford University Press.
• Leiter, Brian, 2016, “The Case against Free Speech”, Sydney Law Review , 38(4): 407–439.
• Lepoutre, Maxime, 2021, Democratic Speech in Divided Times , Oxford/New York: Oxford University Press.
• MacKinnon, Catharine A., 1984 [1987], “Not a Moral Issue”, Yale Law & Policy Review , 2(2): 321–345. Reprinted in her Feminism Unmodified: Discourses on Life and Law , Cambridge, MA: Harvard University Press, 1987, 146–162 (ch. 13).
• Macklem, Timothy, 2006, Independence of Mind , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199535446.001.0001
• Maitra, Ishani, 2009, “Silencing Speech”, Canadian Journal of Philosophy , 39(2): 309–338. doi:10.1353/cjp.0.0050
• Maitra, Ishani and Mary Kate McGowan, 2007, “The Limits of Free Speech: Pornography and the Question of Coverage”, Legal Theory , 13(1): 41–68. doi:10.1017/S1352325207070024
• Matsuda, Mari J., 1989, “Public Response to Racist Speech: Considering the Victim’s Story Legal Storytelling”, Michigan Law Review , 87(8): 2320–2381.
• Matsuda, Mari J., Charles R. Lawrence, Richard Delgado, and Kimberlè Williams Crenshaw, 1993, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (New Perspectives on Law, Culture, and Society), Boulder, CO: Westview Press. Reprinted 2018, Abingdon: Routledge. doi:10.4324/9780429502941
• McGowan, Mary Kate, 2003, “Conversational Exercitives and the Force of Pornography”, Philosophy & Public Affairs , 31(2): 155–189. doi:10.1111/j.1088-4963.2003.00155.x
• –––, 2019, Just Words: On Speech and Hidden Harm , Oxford: Oxford University Press. doi:10.1093/oso/9780198829706.001.0001
• McMahan, Jeff, 2009, Killing in War , (Uehiro Series in Practical Ethics), Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199548668.001.0001
• Milton, John, 1644, “Areopagitica”, London. [ Milton 1644 available online ]
• Meiklejohn, Alexander, 1948, Free Speech and Its Relation to Self-Government , New York: Harper.
• –––, 1960, Political Freedom: The Constitutional Powers of the People , New York: Harper.
• Mill, John Stuart, 1859, On Liberty , London: John W. Parker and Son. [ Mill 1859 available online ]
• Nagel, Thomas, 2002, Concealment and Exposure , New York: Oxford University Press.
• Pallikkathayil, Japa, 2020, “Free Speech and the Embodied Self”, in Oxford Studies in Political Philosophy (Volume 6), David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford: Oxford University Press, 61–84 (ch. 3). doi:10.1093/oso/9780198852636.003.0003
• Parekh, Bhikhu, 2012, “Is There a Case for Banning Hate Speech?”, in The Content and Context of Hate Speech: Rethinking Regulation and Responses , Michael Herz and Peter Molnar (eds.), Cambridge/New York: Cambridge University Press, 37–56. doi:10.1017/CBO9781139042871.006
• Post, Robert C., 1991, “Racist Speech, Democracy, and the First Amendment Free Speech and Religious, Racial, and Sexual Harassment”, William and Mary Law Review , 32(2): 267–328.
• –––, 2000, “Reconciling Theory and Doctrine in First Amendment Jurisprudence Symposium of the Law in the Twentieth Century”, California Law Review , 88(6): 2353–2374.
• –––, 2009, “Hate Speech”, in Hare and Weinstein 2009: 123–138 (ch. 7). doi:10.1093/acprof:oso/9780199548781.003.0008
• –––, 2011, “Participatory Democracy as a Theory of Free Speech: A Reply Replies”, Virginia Law Review , 97(3): 617–632.
• Quong, Jonathan, 2011, Liberalism without Perfection , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199594870.001.0001
• R v. Oakes , 1 SCR 103 (1986).
• Rawls, John, 2005, Political Liberalism , expanded edition, (Columbia Classics in Philosophy), New York: Columbia University Press.
• Raz, Joseph, 1991 [1994], “Free Expression and Personal Identification”, Oxford Journal of Legal Studies , 11(3): 303–324. Collected in his Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press, 146–169 (ch. 7).
• Redish, Martin H., 1982, “Value of Free Speech”, University of Pennsylvania Law Review , 130(3): 591–645.
• Rubenfeld, Jed, 2001, “The First Amendment’s Purpose”, Stanford Law Review , 53(4): 767–832.
• Scanlon, Thomas, 1972, “A Theory of Freedom of Expression”, Philosophy & Public Affairs , 1(2): 204–226.
• –––, 1978, “Freedom of Expression and Categories of Expression ”, University of Pittsburgh Law Review , 40(4): 519–550.
• –––, 2008, “Rights and Interests”, in Arguments for a Better World: Essays in Honor of Amartya Sen , Kaushik Basu and Ravi Kanbur (eds), Oxford: Oxford University Press, 68–79 (ch. 5). doi:10.1093/acprof:oso/9780199239115.003.0006
• –––, 2013, “Reply to Wenar”, Journal of Moral Philosophy 10: 400–406
• Schauer, Frederick, 1978, “Fear, Risk and the First Amendment: Unraveling the Chilling Effect”, Boston University Law Review , 58(5): 685–732.
• –––, 1982, Free Speech: A Philosophical Enquiry , Cambridge/New York: Cambridge University Press.
• –––, 1985, “Slippery Slopes”, Harvard Law Review , 99(2): 361–383.
• –––, 1993, “The Phenomenology of Speech and Harm”, Ethics , 103(4): 635–653. doi:10.1086/293546
• –––, 2004, “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience”, Harvard Law Review , 117(6): 1765–1809.
• –––, 2009, “Is It Better to Be Safe than Sorry: Free Speech and the Precautionary Principle Free Speech in an Era of Terrorism”, Pepperdine Law Review , 36(2): 301–316.
• –––, 2010, “Facts and the First Amendment”, UCLA Law Review , 57(4): 897–920.
• –––, 2011a, “On the Relation between Chapters One and Two of John Stuart Mill’s On Liberty ”, Capital University Law Review , 39(3): 571–592.
• –––, 2011b, “Harm(s) and the First Amendment”, The Supreme Court Review , 2011: 81–111. doi:10.1086/665583
• –––, 2015, “Free Speech on Tuesdays”, Law and Philosophy , 34(2): 119–140. doi:10.1007/s10982-014-9220-y
• Shiffrin, Seana Valentine, 2014, Speech Matters: On Lying, Morality, and the Law (Carl G. Hempel Lecture Series), Princeton, NJ: Princeton University Press.
• Simpson, Robert Mark, 2016, “Defining ‘Speech’: Subtraction, Addition, and Division”, Canadian Journal of Law & Jurisprudence , 29(2): 457–494. doi:10.1017/cjlj.2016.20
• –––, 2021, “‘Lost, Enfeebled, and Deprived of Its Vital Effect’: Mill’s Exaggerated View of the Relation Between Conflict and Vitality”, Aristotelian Society Supplementary Volume , 95: 97–114. doi:10.1093/arisup/akab006
• Southeastern Promotions Ltd., v. Conrad , 420 U.S. 546 (1975).
• Sparrow, Robert and Robert E. Goodin, 2001, “The Competition of Ideas: Market or Garden?”, Critical Review of International Social and Political Philosophy , 4(2): 45–58. doi:10.1080/13698230108403349
• Stone, Adrienne, 2017, “Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech”, Constitutional Commentary , 32(3): 687–696.
• Stone, Geoffrey R., 1983, “Content Regulation and the First Amendment”, William and Mary Law Review , 25(2): 189–252.
• –––, 1987, “Content-Neutral Restrictions”, University of Chicago Law Review , 54(1): 46–118.
• –––, 2004, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism , New York: W.W. Norton & Company.
• Strauss, David A., 1991, “Persuasion, Autonomy, and Freedom of Expression”, Columbia Law Review , 91(2): 334–371.
• Strossen, Nadine, 2018, Hate: Why We Should Resist It With Free Speech, Not Censorship , New York: Oxford University Press
• Sunstein, Cass R., 1986, “Pornography and the First Amendment”, Duke Law Journal , 1986(4): 589–627.
• –––, 1989, “Low Value Speech Revisited Commentaries”, Northwestern University Law Review , 83(3): 555–561.
• –––, 1993, Democracy and the Problem of Free Speech , New York: The Free Press.
• –––, 2017, #Republic: Divided Democracy in the Age of Social Media , Princeton, NJ: Princeton University Press.
• Tadros, Victor, 2012, “Duty and Liability”, Utilitas , 24(2): 259–277.
• Turner, Piers Norris, 2014, “‘Harm’ and Mill’s Harm Principle”, Ethics , 124(2): 299–326. doi:10.1086/673436
• 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 >

• Accessibility

Support SEP

Mirror sites.

View this site from another server:

• Info about mirror sites

The Stanford Encyclopedia of Philosophy is copyright © 2024 by The Metaphysics Research Lab , Department of Philosophy, Stanford University

Library of Congress Catalog Data: ISSN 1095-5054

Language selection

Freedom of expression and media freedom.

Canada believes freedom of expression is at the core of human individuality and is one of the essential foundations of a safe and prosperous society.

The right of everyone to hold opinions without interference and the right to freedom of expression are in Article 19 of the Universal Declaration of Human Rights and reaffirmed in Article 19 of the International Covenant on Civil and Political Rights .

This includes the freedom to seek, receive and impart information and ideas of all kinds, whether orally, in writing or in print, or through any other media of choice. Certain restrictions are only permissible when in line with international human rights law.

On this page

Canada’s support for freedom of expression, media freedom, canada-u.k. media freedom award, policy papers on media freedom, regional consultations on media freedom.

Canada actively raises concerns about violations of freedom of expression, including freedom of the media, in bilateral and multilateral meetings. These forums include UN General Assembly, the UN Human Rights Council, the Organization for Security and Co-operation in Europe, and other international gatherings.

In line with the need to protect freedom of expression, Canada led a new resolution in July 2020 alongside other partners to put the issue of freedom of expression back on the agenda of the Human Rights Council. The resolution ensures that evolving international norms take into account contemporary issues facing freedom of expression. Canada co-sponsored in December 2019 the most recent UN General Assembly resolution on the safety of journalists ( A/RES/74/157 ).

Canada strongly believes that media freedom remains an important part of democratic societies and essential to the protection of human rights and fundamental freedoms. People need free media to provide them with accurate information and informed analysis to hold governments to account.

What Canada is doing to support media freedom

Canada is playing an international leadership role on the issue of media freedom. We co-hosted the Global Conference for Media Freedom, in July 2019, in London, United Kingdom. We are applying the outcomes of this event and, in particular, the Global Pledge on Media Freedom. Governments that signed the pledge commit to working together through the newly created Media Freedom Coalition. The coalition launched on September 25, 2019, on the margins of the UN General Assembly. There are 42 signatories.

In June 2019, Canada launched updated guidelines to support human rights defenders around the world with specific guidance for journalists. In July 2019, Canada announced $1 million in funding to the new Global Media Defence Fund, administered by UNESCO. In November 2020, Canada announced an additional $1 million in funding to the Fund to help enhance media access to legal assistance.

Currently, Canada funds media freedom projects in the Middle East and Africa. These Canadian projects train journalists to accurately and responsibly report on human rights in their communities. The journalists work with local civil society and host governments. The projects encourage a better understanding that a free press promotes accountable governance, which effectively meets the needs of its citizens.

Canada is committed to making sure that its initiatives align with the UN Plan of Action and are consistent with its overall objective.

In November 2020, Canada and Botswana co-hosted the second Global Conference for Media Freedom. The online event featured the first Ministerial meeting of the Media Freedom Coalition,. The conference provided a forum to strengthen joint efforts in defending media freedom worldwide. It also provided a platform to connect with journalists, civil society and governments.

Current state of media freedom worldwide

Laws, punitive legal measures and physical violence are restricting journalists’ and media organizations’ vital work. There has been a significant decline in the environments that allow media professionals to do their work. These issues are especially critical in regions facing social, ethnic and political stress, armed conflicts or disaster situations.

Another outstanding issue is the large number of unresolved murders of journalists and the perpetrators going unpunished. According to the International Federation of Journalists, 60 journalists and media workers were killed in 2020. Non-lethal attacks also range from intimidation to harassment and arbitrary detention; misogynistic attacks are also common.

Journalism continues to evolve into the digital space, and there is a need to address new threats to media freedom. Digital security concerns have increased as lines blur between online and offline activity. There are also signs of organized disinformation campaigns, which can be led by state actors and third parties. Journalists and other media professionals are some of the main targets of digital attacks and abuse. Any discussion on media freedom must reflect the growing concerns over digital threats.

The Canada-U.K. Media Freedom Award was launched in 2020 to recognize individuals or organizations advocating for media freedom. It provides an opportunity to honour the less recognized grassroots organizations, campaign groups, lawyers and media outlets defending media freedom and fighting against impunity. The award is a way for Canada and the United Kingdom to show their support for the work of these individuals and organizations.

The winner of the 2020 Canada-U.K. Media Freedom Award was the Belarusian Association of Journalists for its ongoing commitment to journalistic ethics and principles and its perseverance and self-sacrifice in the face of increased targeted crackdowns on media in Belarus.

In the lead up to the second Global Conference for Media Freedom, Canada commissioned a set of independent policy papers on media freedom. The aim of these policy papers is to engage in a broader discussion with experts on challenges facing media freedom; stimulate debate and discussion on policy recommendations; and help inform the Media Freedom Coalition’s future work.

• Amplifying Voices, Protecting Lives: Addressing Systemic Racism in Media
• Freedom of the media and artificial intelligence
• Media Freedom and COVID-19
• Media independence and sustainability
• New Challenges for Media Freedom and Democracy
• Threats against journalists

In the lead up to the second Global Conference for Media Freedom, Canada carried out a number of regional consultations to engage directly with stakeholders and gather knowledge about media freedom challenges at the regional and sub-regional level.

• Latin America
• Middle East and North Africa
• Southeast Asia
• Sub Saharan Africa - Anglophone
• Sub Saharan Africa - Francophone
• 2023-05-03 - Media Freedom Coalition Statement: World Press Freedom Day
• 2023-05-01 - Canada and United Kingdom announce recipient of the 2023 Media Freedom Award
• 2023-04-12 - Media Freedom Coalition Executive Group Statement: Detention of Wall Street Journal reporter Evan Gershkovich
• 2022-12-01 - Media Freedom Coalition Statement on Iran
• 2022-11-02 - Media Freedom Coalition statement on International Day to End Impunity for Crimes Against Journalists
• 2022-09-16 - Media Freedom Coalition Statement on the Killing of Shireen Abu Akleh
• 2022-07-04 - Media Freedom Coalition statement on Venezuela
• 2022-05-03 - Statement by Media Freedom Coalition on World Press Freedom Day
• 2022-03-10 - Media Freedom Coalition Statement on Russia’s Invasion of Ukraine and Assault on Media Freedom
• 2022-03-08 - International Women’s Day 2022: Media Freedom Coalition Statement
• 2022-02-09 - Global Conference for Media Freedom: Joint communiqué
• 2022-02-07 - Media Freedom Coalition statement on closure of media outlets in Hong Kong
• 2022-02-04 - Media Freedom Coalition statement on media freedom and safety of journalists in Myanmar
• 2021-11-02 - Media Freedom Coalition on International Day to End Impunity for Crimes Against Journalists
• 2021-10-28 - Media Freedom Coalition Statement Concerning Media Freedom in Russia
• 2021-07-09 - Media Freedom Coalition statement on anniversary of inaugural Global Conference for Media Freedom
• 2021-07-09 - Media Freedom Coalition statement on closure of Apple Daily newspaper in Hong Kong
• 2021-05-28 - Media Freedom Coalition statement on arrest of Roman Protasevich
• 2021-02-05 - Media Freedom Coalition statement concerning media freedom in Belarus
• 2021-01-20 - Media Freedom Coalition statement concerning media freedom on China
• 2021-01-08 - Statement by the Media Freedom Coalition on the situation in Uganda
• 2020-11-13 - Media Freedom Coalition’s Executive Group statement on media freedom in Egypt
• 2020-11-02 - Statement by Media Freedom Coalition on International Day to End Impunity for Crimes Against Journalists
• 2020-10-07 - Media Freedom Coalition’s Executive Group statement on Miroslava Breach case in Mexico
• 2020-09-24 - Media Freedom Coalition’s Executive Group statement concerning media freedom in Belarus
• 2020-07-10 - Canada and United Kingdom mark first anniversary of Global Conference for Media Freedom
• 2020-07-09 - Statement by Media Freedom Coalition on situation in the Philippines
• 2020-06-25 - Media Freedom Coalition’s Executive Group statement concerning media freedom in Yemen
• 2020-05-03 - Statement by the Media Freedom Coalition on World Press Freedom Day
• 2020-04-06 - Media Freedom Coalition Executive Group statement on COVID-19
• 2020-02-25 - Statement by the Media Freedom Coalition on its first meeting

Thank you for your help!

You will not receive a reply. For enquiries, please contact us .