conclusion on freedom of speech and expression

Chapter 6: The Right to Freedom of Speech

The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Free speech is our most fundamental—and our most contested—right. It is an essential freedom because it is how we protect all of our other rights and liberties. If we could not speak openly about the policies and actions of government, then we would have no effective way to participate in the democratic process or protest when we believed governmental behavior threatened our security or our freedom. Although Americans agree that free speech is central to democratic government, we disagree sharply about what we mean by speech and about where the right begins and ends. Speech clearly includes words, but does it also include conduct or symbols? Certainly, we have the right to criticize the government, but can we also advocate its overthrow? Does the right to free speech allow us to incite hate or use foul language in public?

The framers of the Bill of Rights understood the importance of free expression and protected it under the First Amendment: “Congress shall make no law. . . abridging the freedom of speech.” Both English history and their own colonial past had taught them to value this right, but their definition of free speech was much more limited than ours. Less than a decade after the amendment’s ratification, Congress passed the Sedition Act of 1798, making it a crime to criticize the government. Many citizens believed government could forbid speech that threatened public order, as witnessed by numerous early nineteenth-century laws restricting speech against slavery. During the Civil War, thousands of antiwar protestors were arrested on the theory that the First Amendment did not protect disloyal speech. Labor unrest in the 1800s and 1890s brought similar restraints on the right of politically unpopular groups, such as socialists, to criticize government’s failure to protect working people from the ills of industrialization and economic depression.

Freedom of speech did not become a subject of important court cases until the twentieth century when the Supreme Court announced one of the most famous principles in constitutional law, the clear and present danger test. The test was straightforward: government could not restrict speech unless it posed a known, immediate threat to public safety. The standard sought to balance the need for order with the right to speak freely. At its heart was the question of proximity, or closeness, and degree. If speech brought about an action that was dangerous under the immediate circumstances, such as falsely yelling “fire” in a crowded theater, then it did not enjoy First Amendment protection. With this case, Schenck v. United States (1919), the Court began a decades-long process of seeking the right balance between free speech and public safety.

The balance, at first, was almost always on the side of order and security. Another case decided in 1919, Debs v. United States , illustrates how restrictive the test could be. Eugene Debs was a labor leader from Indiana who had run for President four times as the candidate of the Socialist Party of America, once polling more than one million votes. At a June 1918 rally in Chicago, while U.S. troops were fighting in World War I, he told the working-class crowd, “You need to know you are fit for something better than slavery and cannon fodder.”

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

He was sentenced under an existing federal statute to twenty years in prison for inciting disloyalty and obstruction of military recruitment, which the Supreme Court upheld.

For the next five decades, the Court wrestled with the right balance between speech and order. Much of what defined freedom of speech emerged from challenges to the government’s ability to regulate or punish political protest. Each case brought a new set of circumstances that allowed the justices an opportunity to modify or extend the clear and present danger test. Many decisions recognized the abstract right of individuals to speak freely, but each one hedged this right in important ways. Always in the background were conditions that pointed to disorder, dissension, and danger—the Great Depression, World War II, and the Cold War, among them—so the justices were cautious in expanding a right that would expose America to greater threats. These cases, however, gradually introduced a new perspective on the value of free speech in a democracy, namely, the belief that truth is best reached by the free trade in ideas.

The belief that society is best served by a marketplace of ideas open to all opinions, no matter how radical, ultimately prevailed. In 1927, the Court had endorsed what came to be called the bad tendency test: if officials believed speech was likely to lead to a bad result, such as urging people to commit a violent act, it was not protected under the First Amendment even if no violence occurred. By 1969, however, similar facts produced a different outcome. Ku Klux Klan members in Ohio invited a television station to film their rally. Waving firearms, they shouted racist and anti-Semitic slurs and threatened to march on Congress before their leader was arrested and later convicted under a state law banning speech that had a tendency to incite violence. The Supreme Court overturned his conviction in Brandenburg v. Ohio and established the rule still in effect today: the First Amendment protects the right to advocate the use of force or violence, but it does not safeguard speech likely to incite or produce an immediate unlawful act. The Brandenburg test has allowed Nazis to march, Klan members to hold rallies, and other extremist groups to promote views far outside the mainstream of public opinion. With few exceptions—fighting words and obscenity, for example—government today cannot regulate the content of speech.

Even as society was coming to accept a wide range of political ideas, opposition to an unpopular war raised other questions about the limits and forms of free speech. By the mid- to late 1960s, the Vietnam War divided Americans. Although many citizens supported the use of U.S. troops to stop communism in Asia, a growing minority, including many draft-age young people, took to the streets to oppose the war. The protestors did not limit their efforts to antiwar speeches; they also wore shirts with obscene slogans, burned draft cards, and desecrated American flags. Using these symbols to protest, they argued, was a form of free speech. Soon, the Supreme Court faced the question squarely in a case involving a youthful protestor from the nation’s heartland: is symbolic speech—messages using symbols or signs, not words—protected by the First Amendment?

The first large-scale American demonstration against the Vietnam War occurred in November 1965 when more than 25,000 protestors converged on the nation’s capital. Fifty Iowans made the long bus ride, and on the way home they decided to make their opposition known locally by wearing black armbands to work and school. One member of the peace contingent was Lorena Tinker, the wife of a Des Moines Methodist minister and mother of five children. Mary Beth Tinker, a thirteen-year-old eighth grader, followed her mother’s suggestion and became one of a handful of local public school students who wore this symbol of protest to school. This act placed her in the middle of a national controversy about student rights and freedom of expression.

In many ways, Mary Beth was a normal eighth grader. She was a good student who enjoyed singing, spending time with her friends, and taking part in church activities. What made her different was a commitment to social justice, a passion encouraged by her parents, both of whom were known for their activism. Her parents wanted their children to share their moral and social values, and Mary Beth responded eagerly to their invitation to participate with them. By the time she became a teenager, she already had attended her first protest, accompanying her father to a rally about fair housing.

Mary Beth Tinker, her brother, John, and a handful of Des Moines students planned their demonstration for December 16, 1965. The students’ aim was not to protest the war but to mourn its casualties, Vietnamese and American, and to show support for proposed peace talks. School officials, however, promised to suspend anyone who came to school wearing the armbands, and the school principal suspended Mary Beth and sent her home. She was one of five students suspended that day for wearing the offending cloth. Significantly, the school ban applied only to armbands, in other words, to students who opposed the Vietnam War; a number of students that day wore an array of other symbols, including the Iron Cross, a Nazi medal.

When the school board upheld the suspensions, the Tinkers persuaded the Iowa Civil Liberties Union to take the case to federal court. Two lower federal courts agreed with the school’s action, rebuffing the argument that the policy violated the First Amendment guarantee of free speech. The Supreme Court decided otherwise. In its 7-to-2 decision, announced in February 1969, the justices held that the wearing of armbands is a symbolic act akin to “pure speech” and protected by the right to free expression. The protesting students posed no threat to the order required for effective instruction, nor did the wearing of armbands interfere with the school’s educational mission. In this instance, the balance between order and liberty was weighted on the side of the First Amendment. Students and teachers, the Court concluded, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Symbolic speech has been the focus of some of our greatest constitutional drama. Words may be powerful and provocative, but symbols are often more inflammatory because they are visual and evoke an emotional response. We live in an age when we use pictures and symbols to convey important messages, whether in politics or the marketplace. For these reasons, the Supreme Court’s recognition of symbolic speech as a right protected by the First Amendment has been a significant development. Twenty-five years after Mary Beth Tinker put on her armband in remembrance of the war dead, Life magazine featured a handful of civil liberties cases to celebrate the bicentennial of the Bill of Rights. Mary Beth’s case was included, even though the rights of students remained, and still are, more limited than those of adult citizens. But her actions as an eighth grader expanded our conception of constitutionally protected speech to include the symbols we use to express our convictions.

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

More than most other recent decisions, cases involving symbolic speech have revealed how contentious the right of free speech remains in our society. In 1989, the Supreme Court ruled that the First Amendment protected individuals who burned the American flag in protest. This decision was highly controversial, and it has resulted in numerous attempts to amend the Constitution to protect the flag and, in effect, limit speech in this circumstance. The outcome of this effort is uncertain, but the debate raises important questions: What role does this right play in our democracy? How does it contribute to our liberty as Americans?

The right to speak freely, without restraint, is essential to democratic government because it helps us develop better laws and policies through challenge, rebuttal, and debate. When we all have the ability to speak in the public forum, offensive opinions can be combated with an opposing argument, a more inclusive approach, a more effective idea. We tolerate offensive speech and protect the right to speak even for people who would deny it to us because we believe that exposing their thoughts and opinions to open debate will result in the discovery of truth. This principle is an old one in Western thought. U.S. Supreme Court Justice Oliver Wendell Holmes’s dissent in Abrams v. United States , a 1919 case suppressing free speech, is a classic statement of this view: “The best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the public’s] wishes safely can be carried out.”

Governmental actions to deny differing points of view, even distasteful or unpopular opinions, rob us of the range of ideas that might serve the interests of society more effectively. In a case decided almost a decade before Tinker v. Des Moines , the Supreme Court found this rationale especially applicable to the classroom. “The Nation’s future,” the justices wrote, “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues.” As a nation, we are willing to live with the often bitter conflict over ideas because we believe it will lead to truth and to improved lives for all citizens. We recognize that freedom of speech is the first freedom of democracy, as the English poet John Milton argued during his own seventeenth-century struggle to gain this right: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The ability to speak freely allows us to pursue truth, to challenge falsehoods, to correct mistakes—all are necessary for a healthy society.

Free speech also reflects a commitment to individual freedom and autonomy, the right to decide for ourselves and to pursue our own destiny. Throughout our history, we have been so committed to individual choice that many foreign observers believe it is our most characteristic trait. We see it reflected daily in everything from advertising slogans—“Have It Your Way”— to fashion statements, but fail to recognize how closely freedom is tied to the right to speak freely. Free speech guarantees us an individual voice, no matter how far removed our opinions and beliefs are from mainstream society. With this voice we are free to contribute as individuals to the marketplace of ideas or a marketplace of goods, as well as to decide how and under what circumstances we will join with others to decide social and governmental policies.

A commitment to free speech, of course, will not resolve all conflict, not if our history is any guide. The debate is most contentious during times of war or other moments when national security is at stake. Even then—perhaps especially then—we will continue to fight over words and symbols because they express our deepest hopes and our most worrisome fears. This contest over what speech is acceptable and what is not has been a constant theme of our past. Rarely do these struggles produce a neat consensus. More often, intemperate rhetoric and bitter division have been their legacy, and this angry clamor is one of the basic noises of our history. What makes the struggle to protect free speech worthwhile is its ability to serve as a lever for change. When we practice our right to speak openly, we are defining the contours of our democracy. It is messy work, but through it, we keep the Constitution alive and, with it, our dreams of a just society.

“Free Trade in Ideas”

Jacob Abrams was a Russian immigrant and anarchist convicted of violating the Sedition Act of 1918, which made it a crime to advocate anything that would impede the war effort during World War I. In 1917 Justice Oliver Wendell Holmes, Jr., had written the Court’s opinion in Schenck v. United States , upholding similar convictions because Congress had a right to regulate speech that posed a “clear and present danger” to public safety. But by the time Abrams’s appeal reached the Court in 1919, Holmes had modified his views. Disturbed by anti-radical hysteria, he dissented from the majority’s decision upholding Abrams’s conviction in Abrams v. United States . His eloquent discussion of the connection between freedom of speech and the search for truth soon became the standard used by the Supreme Court to judge free speech cases until Brandenberg v. Ohio in 1972. The First Amendment, Holmes reasoned, protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so . . .

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

“Malicious Words” versus “Free Communication”

In response to fears about imminent wars with France in 1798, the Federalist-controlled Congress passed a series of four acts known collectively as the Alien and Sedition Acts. Section 2 of the Sedition Act made it a crime to make defamatory statements about the government or President. (Sedition is an action inciting resistance to lawful authority and tending to lead to the overthrow of the government.) The act was designed to suppress political opposition. Its passage by Congress reveals how limited the definition of the right of free speech was for some Americans only a few years after the ratification of the First Amendment.

Sec. 2 . . . That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United Sates, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

James Madison, congressman from Virginia, and Thomas Jefferson, the sitting Vice President, secretly drafted resolutions protesting the Sedition Act as unconstitutional. The Virginia and Kentucky legislatures passed these resolutions in 1798. Both resolutions especially pointed to the act’s violation of First Amendment protections, as seen in the Virginia Resolution here.

Resolved, . . . That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

The Sedition Act expired in 1801 but not until a number of the Federalists’ opponents, including Congressman Matthew Lyon of Vermont, had been convicted of violating the law. Today, historians consider the Sedition Act to have been a gross misuse of government power. In 1798, the Kentucky Resolutions focused on the rights of states to determine the limits of free speech.

Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.

Related Resources

• Timeline: First Amendment - Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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• 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 .]

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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.

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Justifying Limitations on the Freedom of Expression

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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.

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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’.

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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.

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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

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Freedom of Expression, a Fundamental Human Right

About the author, ban ki-moon.

Freedom of expression is a fundamental human right, enshrined in Article 19 of the Universal Declaration of Human Rights. But around the world, there are governments and those wielding power who find many ways to obstruct it.

They impose high taxes on newsprint, making newspapers so expensive that people can't afford to buy them. Independent radio and TV stations are forced off the air if they criticize Government policy. The censors are also active in cyberspace, restricting the use of the Internet and new media.

Some journalists risk intimidation, detention and even their lives, simply for exercising their right to seek, receive and impart information and ideas, through any media, and regardless of frontiers.

Last year, UNESCO condemned the killing of 77 journalists. These were not high-profile war correspondents, killed in the heat of battle. Most of them worked for small, local publications in peacetime. They were killed for attempting to expose wrongdoing or corruption.

I condemn these murders and insist that the perpetrators are brought to justice. All Governments have a duty to protect those who work in the media. This protection must include investigating and prosecuting those who commit crimes against journalists.

Impunity gives the green light to criminals and murderers, and empowers those who have something to hide. Over the long term, it has a corrosive and corrupting effect on society as a whole.

This year's theme is Freedom of Information: the right to know. I welcome the global trend towards new laws which recognize the universal right to publicly held information. Unfortunately, these new laws do not always translate into action. Requests for official information are often refused, or delayed, sometimes for years. At times, poor information management is to blame. But all too often, this happens because of a culture of secrecy and a lack of accountability.

We must work to change attitudes and to raise awareness. People have a right to information that affects their lives, and states have a duty to provide this information. Such transparency is essential to good government.

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Module 1: Key Principles of International Law and Freedom of Expression

The right to freedom of expression is firmly established in international and regional human rights law, which has proven instrumental in ensuring binding domestic and regional judgments against states seeking to violate this fundamental and touchstone right. However, the right is increasingly being challenged in new ways as a result of the dramatic changes wrought upon the world by the growth of the internet and technology, particularly for journalists and the media. Leveraging the international law and jurisprudence that exists to continue to protect this fundamental right in a rapidly evolving world is more important than ever.

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The right to freedom of expression: The mother of our democracy

WJ van Vollenhoven

BA HED FDE BEd (Hons) MEd PhD (University of Pretoria). Academic manager at the Unit for Open Distance Learning for the Faculty of Education Sciences, North-West University, Potchefstroom, South Africa. Email: [email protected]

This paper explores student-teachers' understanding of the right to freedom of expression in education. Analyses of case law and legal principles affirm that the right to freedom of expression is an essential prerequisite to protect and promote democracy. Based on qualitative research, the empirical evidence indicates that although student-teachers are aware of the fact that the right to freedom of expression is not absolute and may be limited, they have a superficial knowledge of the application of this right. Student-teachers have a sense of the importance of the right to freedom of expression in a democracy, but they have not yet internalised the mechanism or process of balancing the right in praxis. This does not bode well as the school system will fail to be a market place of ideas. In order to enable learners to reach their full potential as critical thinkers and autonomous citizens in a developing democracy, it is imperative that teachers should understand and master the application of the right to freedom of expression in schools.

Keywords: Democracy, human rights, freedom of expression, transformative curriculum, teaching-learning approaches, student-teachers

1 Introduction

The right to freedom of expression, viewed as a pillar of democracy, is clearly addressed in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) of 1976. 1 The freedom of expression, opinion and information is also protected in Article 19 of the Universal Declaration of Human Rights (UDHR) of 1948 2 - which is a clear indication that freedom of expression is viewed internationally as a fundamental right and a prerequisite in any democracy. Moreover, it is universally accepted that freedom of expression creates a marketplace of ideas and ensures individual development and self-fulfilment. 3 In South African courts, too, this right is viewed as central to a constitutional democracy given the extent to which it supports other rights. Before we continue with the argument; it is necessary to define "democracy" at this point.

Du Toit 4 defines "democracy" as "rule by the people", which he interprets as

...all citizens shall participate on an equal basis in public decision-making on vital aspects of all common affairs, including social life, the economy, morality and education.

The core of a democracy is that all citizens have a right to participative decision-making. 5 Simirlarly, Coetzee and Le Roux 6 agree that:

... democracy can be regarded as a system of government in which the ruling power of the State is legally vested in the people: government of the people, by the people, for the people.

In an article published in the Journal of Education, Van Vollenhoven, Beckmann and Blignaut 7 argue that democracy is being suppressed in SA schools because the right to freedom of expression, as a fundamental right in a democracy, is not nurtured in the schooling system. Furthermore, according to Van Vollenhoven's findings, learners have a very poor understanding of the right to freedom of expression - let alone the educational implications thereof. 8 It seems that school authorities with their authoritarian leadership styles - a direct consequence of the power such a position previously yielded - are still violating the right to freedom of expression. Given this situation and the desire to instil the right to freedom of expression and, in so doing, to develop the principles of democratisation, the question is raised as to how a balance can be struck between this right and lived educational practice. Unfortunately, current practices counter the development of the right to freedom of expression and, in so doing, also the development of democracy. If critical and independent thinking amongst both the leadership and the followers in education is to be encouraged, respect for freedom of expression will have to be instilled. Crucially, student-teachers need to acquire the knowledge and develop the skills to apply the right to freedom of expression in their training and, eventually, in their school praxis.

In an NRF-funded project, "Human Rights Literacy: A Quest for Meaning", 9 the research team set out to explore what human rights literacy entails with the intention of establishing and developing an improved transformative curriculum and teaching-learning approaches. 10 Using a rhizomatic design, qualitative and quantitative research data was collected by means of three different methodological processes: a walkabout, a survey, and small focus-group discussions. 11

Arguing that if education is to be the custodian of a democratic society in which the fundamental right to freedom of expression is a prerequisite, this paper will focus on the data collected during focus-group discussions where student-teachers responded to a scenario dealing with the right to freedom of expression.

It was indicated above that during the first ten years of the new democracy, this was clearly not the case. Now, 20 years after the institution of a democratic dispensation in South African schools, the aim of this article is to attempt to establish whether this core right is better understood and implemented.

2 Background

In 1994 South Africa became a democracy with an advanced Constitution which entrenched human rights in its Bill of Rights. When South Africa's young democracy brought an end to years of systematic discrimination and oppression, 12 the expectation was that education would play a major role in the process of moving the country towards a culture of human rights. Twenty years later, as South Africans are still battling to instil or even define the concept "democracy", and given that teachers have a professional duty to promote democracy in schools as well as in broader society, an interrogation of the role teachers perform in ensuring the survival of democratic principles is warranted. 13

It is against this background that this paper will explore student-teachers' internalisation and application of the right to freedom of expression, which is viewed as a core right in any democracy. This article draws from data elicited in a research project titled "Human Rights Literacy: A Quest for Meaning", 14 that explored South African student-teachers' conceptualisation of human rights. The article starts with a theoretical overview, whereafter the focus will shift to a conceptual framework which explores freedom of expression as a core right in a democracy, which will be followed by an explanation of the empirical study's methodology and an analysis of the data.

3 The right to freedom of expression

The Constitution of 1996 brought about a move away from an authoritarian culture to one of openness or transparency, accountability and justification of actions. Freedom of expression is one of the civil freedoms guaranteed in section 16 of the Constitution: 15

(1) Everyone has the right to freedom of expression, which includes: (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.

The word "includes" indicates that although mention is made of only four aspects of this right, it could encompass other aspects as well. The Guidelines for Consideration of Governing Bodies in Adopting a Code of Conduct 16 define freedom of expression as more than freedom of speech, thus including also the right to seek, hear, read and wear. It therefore extends to encompassing all forms of outward or nonverbal expression, eg the selection of clothing and hairstyles. 17

In essence, section 16(1) protects freedom of expression, including the contents thereof and those to whom it is addressed. 18 The protection of this right is important in South Africa. For many years, the majority of citizens were denied this right to freedom of expression, and they could even be sued for speaking out against government. 19 In this bureaucracy, even learners were taught not to differ and not to question anything educators or authorities told them. 20 Therefore, all citizens - even educators - were not taught to think critically, to question whatever they were told, or what was happening to them. The authoritarian culture withheld them from speaking out or differing from authorities.

Subsections 16(1)a-d particularly include protection for the freedom of the press and media (1a), the freedom to receive or impart information and ideas (1b), artistic creativity (1c) and academic freedom and scientific research (1d). Section 16(2) specifies under which circumstances the right afforded in section 16(1) can be excluded. According to section 16(2), this right can be limited when it is used as propaganda for war (2a), to incite imminent violence (2b) or as a form of hate speech (2c). It is important to realise that even though certain ways of expression are mentioned in section 16(1), they are definitely not singled out for greater protection than other forms of expression. 21 Although the right to freedom of expression is internally limited in section 16(2), it can also (like any other right) be limited under the limitation clause. 22

4 Limitation of the right to freedom of expression

In South Africa, which is characterised by a multicultural diverse society, hate speech - as excluded by section 16(2)(c) - needs to be addressed. In line with this, the publication of words or behaviour will be prima facie wrongful where the publication is contrary to the boni mores of society. 23 In this regard, international law could guide South African courts in implementing legislation, an example being the Canadian Supreme Court, which has also accepted the legitimacy of controls to hate speech. 24 Section 16(2) of the Constitution excludes the advocacy of hatred based on race, ethnicity, gender and religion from the ambit of the right to freedom of expression when this amounts to incitement to cause harm. Hate speech or defamation can cause emotional damage and will be a violation of the individual's right to human dignity. 25 Elements of an action for defamation are the wrongful and intentional publication of a defamatory statement. 26 It is, therefore, important to guide young learners in executing their right to freedom of expression so that they do not infringe upon the fundamental rights of another person by using hate speech. This right is not mentioned in the South African Schools Act 84 of 1996 (SASA). Freedom of expression will hence be viewed directly via the Constitution as well as through the value system that underpins the Constitution and the South African democracy.

5 A pillar of democracy

The right to freedom of expression, viewed as a pillar of democracy, is clearly addressed in Article 19 of the ICCPR of 1976, which has been ratified by South Africa. 27 Freedom of expression, opinion and information is also protected in Article 19 of the UDHR of 1948, 28 which is a clear indication that freedom of expression is viewed internationally as a fundamental right and a prerequisite in any democracy. The intention of the UDHR, which has also been ratified by South Africa, is to ensure that all human beings "shall enjoy freedom of speech and belief and freedom from fear" as common people of the world 29 and that their human rights should be protected by the rule of law. With this preamble, the nations of the world agree that the right to freedom of speech is the core of a democracy and individual freedom.

Given that freedom of expression is regarded as a prerequisite to and one of the core rights in a democracy, 30 this right is treated as if it were a constitutionally protected freedom even in countries without a constitutionally entrenched Bill of Rights. Beatty 31 concurs and describes freedom of expression as the value that underpins liberal-democratic government. For example, Clayton and Tomlinson 32 as well as Turk and Joinet 33 indicate that freedom of expression was regarded as a "core right" even before the advent of the Canadian Charter of Rights and Freedoms in 1982 - currently Part 1 of the Constitution of Canada. 34

However, a democratic society is continuously in the process of change, will have restrictions on rights and freedoms, and its procedures will frequently be questioned. This is ensured by the right to freedom of expression, which is therefore viewed as a prerequisite to democracy. Consequently, democracy can be viewed as a "tragic" political system. As Castoriadis says, democracy is "the only regime that openly faces the possibilities of its self-destruction by taking up the challenges of offering its enemies the means of contesting it". 35 Similarly, Wood 36 argues that freedom of expression is regarded as an essential pillar of a free and democratic society. In line with this, Shyllon 37 argues that the free exercise of this right is important in highlighting poor service delivery and exposing corruption, maladministration and the mismanagement of public funds. Although freedom of expression is regarded as a core human right in a democratic society, even this right can be limited.

6 A prerequisite, yet not absolute

In the USA, for example, the First Amendment's guarantee of free speech has never been absolute. Although the United States Supreme Court has characterised freedom of expression as a "preferred right", some forms of speech such as defamation, fighting words and obscenity fall outside the protection of the First Amendment.

Locally, the value system that underpins the Constitution was developed from South African history. When interpreting the Bill of Rights, one must be guided by this value system. This thought was expressed by Judge Ismail Mahomed 38 in the Makwanyane case:

...the South African Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos.

Against this background to freedom of expression, which is seen as crucial in a democracy but not absolute, it is imperative to determine whether student-teachers in South Africa as a young democracy understand and have internalised this right so that they can apply it in praxis in order to guide young nation builders to develop the skill and competency to use and respect their right to freedom of expression, as intended in a free democracy.

Freedom of expression is not the entitlement of any political system or ideology, but a general human right guaranteed in international law. It is regarded widely as one of the core rights and essential foundations and freedoms of a democracy. 39 In Lehman v. Shaker Heights 40 the court held that freedom of expression invites dispute. This is vital for developing a democracy.

Judge Cardozo defined this concept as "... the matrix, the indispensable condition of nearly every other form of freedom". 41 In Palko v Connecticut, 42 freedom of expression is viewed as a prerequisite for a democratic society and for participation in the democratic process, 43 and also as necessary for the development of the individual, 44 a notion which also features in McIntyre's summation of the case the Retail, Wholesalers and Department Store Union brought against Dolphin Delivery Ltd in the Canadian Supreme Court in 1986. 45 Freedom of expression is not, however, a creature of the Canadian Charter of Rights. It is one of the fundamental concepts that have formed the basis of the historical development of the political, social and educational institutions of Western society. Representative democracy, which is by and large the product of the free expression and discussion of varying ideas, depends on the maintenance and protection of freedom of expression.

Turk and Joinet 46 indicate that the right to freedom of expression is a right tending towards the absolute. In fact, the right to freedom of expression enables human beings to express new ideas and discoveries which promote scientific, artistic or cultural progress. 47

In a similar vein, Clayton and Tomlinson 48 , Van Vollenhoven 49 and Mawdsley, Smit and Wolhuter 50 are of the opinion that the right to freedom of expression enjoys special protection on three different grounds: it serves as the marketplace for ideas, which promote the search for the truth; it ensures individual development and self-fulfilment, which can be derived from the right to human dignity and to equality of concern and respect; and it secures the right of the citizen to participate in the democratic process. Emerson, 51 a former professor at the Yale Law School, put forward a fourth premise, namely that freedom of expression is also a prerequisite for maintaining the balance between stability and change in society. It is specifically with regard to this that teachers should understand how the right to freedom of expression should be balanced in school and in wider society.

These four premises, which enhance the claim that freedom of expression seems to be a core right in a democracy, will now be discussed.

6.1 A market place of ideas

Freedom of expression creates a marketplace of ideas and ensures individual development and self-fulfilment. 52 The right to freedom of expression enables human beings to express new ideas and discoveries which enhance scientific, artistic or cultural progress. This can be seen as the foundation of the "quest for truth" paradigm. Clayton and Tomlinson 53 define the marketplace of ideas as a collection of ideas used to promote the search for truth. The epistemic function of education, as confirmed by Judge Holmes in Abrams v. US, 54 is realised in this search for truth:

[C]ompetition among ideas strengthens the truth and rules out error; the repeated effort to defend one's convictions serves to keep their justification alive in our minds and guards against the twin dangers of falsehood and fanaticism; to stifle a voice is to deprive mankind of its message, which we must acknowledge might possibly be more valuable than our own deeply held convictions ...

One should be able to think, speak and create ideas, even if what is expressed is "wrong". Unpopular views must be uttered and, as postulated by Alston, 55 will either be enhanced or defeated by public opinion (education) rather than by censorship, which would impair creativity, ideas, individual development and democracy.

6.2 Individual development

The creation of a marketplace of ideas 56 helps individuals to attain self-fulfilment. 57 As such, Currie and De Waal 58 argue that the denial of this right would be inhuman because the ability to express oneself is an essential human activity. As people become involved in the "marketplace of ideas" in the search for truth, they become involved in their individual development, which underpins freedom of expression and vice versa. The right to express own opinions, even if these differ from the opinions of others, is essential for individual self-fulfilment. 59 In this regard, Sachs 60 states that the right to freedom of expression allows individuals to be who and what they are. If persons' right to express themselves is violated, they will be restrained from developing to their fullest potential. The right to freedom of expression of the individual person should outweigh the interests of society 61 but may be limited if it poses a potential risk to society.

The balance between individual development and participation in democratic society is achieved through education in schools. 62 Schools need to teach all learners about their right to freedom of expression to maximise not only their personal potential but also the fullest potential of their society. It is necessary to enhance and respect freedom of expression in order to develop and encourage critical and independent thinking.

6.3 Self-fulfilment: Participation in the democratic process

Clayton and Tomlinson 63 and Gordon 64 regard freedom of expression as a prerequisite for participation in the democratic process. This notion was established by the European Court in the case Handyside, brought against the United Kingdom. 65 One could argue that freedom of expression is essential to the right of citizens to participate in the democratic process. People must be able to make political choices and, therefore, they need to have access to information and to different viewpoints. The right to freedom of expression is related to freedom rights, as well as political rights. Turk and Joinet 66 also argue that the case law of the European Court of Human Rights confirms that this right constitutes one of the basic foundations of a democratic society.

Alston 67 describes the democratic process as political and asserts that the political process can never be democratic without the openness to hearing everything and allowing differing views to be expressed. The accommodation of different views is socially acceptable and creates stability in a society. Different and even unpopular views enhance critical thinking, which is a prerequisite for a democratic society. The public school, as the education mentor for learners in a democracy, becomes a forum where children are guided to adulthood and to fulfil their place in a democratic society. Prinsloo 68 and Albertyn and Davies 69 aver that the Bill of Rights and its implication ought to guide both legislation and the application thereof in a democracy. Section 7(1) of the Constitution provides the Bill of Rights as a cornerstone of democracy in South Africa. 70 It enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom.

Wielemans 71 points out that education attempts to solve problems in society. There is a movement back to a holistic approach where the school, instead of being a mere institution of learning, takes the shape of an educational society. 72 Similarly, the DoE set out the purpose of a General Education and Training Certificate (GETC) as equipping "learners with knowledge, skills and values that will enable meaningful participation in society ..." 73 Such participation is feasible only if one has developed the skill of critical thinking or reflection.

In a democracy, people listen to and tolerate opinions with which they disagree. 74 Freedom of expression ensures that governments are unable to abuse democratic or fundamental rights. In the case Holomisa brought against Argus Newspapers Limited in 1996, Cameron J stated that "[ t ]he success of our constitutional venture depends upon robust criticism of the exercise of power. This requires alert and critical citizens". 75

Wielemans 76 refers to this participation in the democratic process as the instrumental task of the school. This implies that the school aims to guide learners to their fullest potential in order to enhance the optimal functioning of society. For this to occur, the right to freedom of expression should be respected. He contends that since the contemporary school tends to be the only entity in modern society that still has the role of disciplining; it functions as a public forum where the youth (learners) are challenged to agree or disagree. The school increasingly becomes a social forum for learners in which to interact with one another and to share experiences. 77 When they do so they simultaneously shape their own lives as individuals and strive toward a democratic society.

Although Gordon 78 concurs that the "epistemic" function of (public) education is to enable learners to acquire the skills necessary to become knowledgeable and productive participants in a democratic society, he also contends that it is the duty of government to provide education so as to furnish citizens with the requisite facts relevant to political decision making and to train them to draw conclusions from those facts. 79 The epistemic function of education is to develop self-controlled citizens who can participate actively in a common system of discourse. 80 Gordon concludes that citizens who have developed to their fullest capacities and fulfilled their own interests are less likely to call for political change, will be economically productive and will maintain a higher standard of living. Hence the government's economic interest in education.

South African court cases that dealt with freedom of expression in the school or in an educational context (Antonie, Pillay, Hamata, Ngubo and Le Roux) can be categorised into two factual variants, namely instances where the expressions have not been harmful, and instances where the expressions have been harmful. 81 If the exercise of freedom of expression neither harms nor interrupts school discipline, it should be respected. Conversely, schools may limit the right to freedom of expression if the expression has infringed a person's right to dignity or has caused harm to others or the school.

6.4 Maintaining the balance between stability and change in society

If persons are not allowed to air their point of view, that viewpoint will never be tested. It is in free discussion, which prevents society from becoming stagnant, that people's own prejudices and pre-conceptions are tested. 82 Freedom of expression is balanced in societies in order to protect other values such as public order, justice and the personal rights of others. 83 The right to freedom of expression may also be limited in terms of the ICCPR 84 and in the interest of national security, public order, safety, health and morals.

In a democracy, the population must be included in civic life. The right to freedom of expression is related to freedom of association and assembly, and these three freedoms are essential in a democracy. 85 In the Turrell case, which arose out of learner protest, Van Zyl J emphasised the importance of freedom of expression in a democracy, stating: "freedom of speech and freedom of assembly are part of the democratic rights of every citizen of the Republic and Parliament guards these rights jealously ..." 86 It is significant that this statement was made before South Africa had a new Constitution or democratic government. The right to freedom of expression as the core of democracy and human rights was therefore acknowledged by the courts even before South Africa became a democracy.

Given this importance of the right to freedom of expression in a democracy, it is crucial to teach learners how to use this right so that they may be enabled to develop optimally as individuals and to fulfil their societal responsibilities. Buckingham 87 suggests that "educators must ... prepare [learners] for a participatory form of citizenship which can function across a whole range of social domains". This is the schools' instrumental task. 88 If freedom of expression is important to ensure the fulfilment of every individual, it is vital to educate toward that end. Andsager and Ross 89 aver that courses in freedom of expression enhance people's understanding of their right to freedom of expression. Such courses could also enhance a citizenry, making it more supportive of democratic and expressive rights.

7 Research process

In a project titled "Human Rights Literacy: A Quest for Meaning", 90 the research team explored what human rights literacy entails and aimed to establish and develop an improved transformative curriculum and teaching-learning approaches. 91 Using a rhizomatic design, qualitative and quantitative research data was collected by means of three different methodological processes: a walk-about, a survey, and small focus-group discussions. 92 This article focuses only on the qualitative data collected in the focus-group discussions, explaining the process followed for this strategy in the paragraphs to follow.

As a first step in the selection of the participants, the research team borrowed from stratified and cluster sampling to purposively select six university sites (campuses) that we considered best suited to provide information for the purpose of the research objectives. 93 The six sites represented a mixture of rural and metropolitan campuses and reflect the linguistic, religious, ethnic and cultural diversity of student-teachers across South Africa.

First- and fourth-year students enrolled for B Ed programmes at the six sites (n=4,953) were invited to participate in the survey. A total of 1,086 students (551 first years and 535 fourth years) participated in the survey, during which they could indicate whether or not they were willing to participate in follow-up focus-group discussions. 94 A snowball sampling strategy was employed to recruit participants for the focus groups. We issues invitations to students on each of the six survey sites who had, during the survey, indicated their willingness to participate in focus groups. Some of these students, in turn, invited other B Ed students from their year-groups, who voluntarily joined the discussions. 95

Group size varied between three and nine participants. Larger groups were avoided since the topics of discussion were complex and sometimes sensitive. 96 Sixty-eight students participated in the focus-group discussions. Twenty-nine participants were first years while 39 were fourth-years. Twenty-seven out of the total 68 participants were male (14 first years and 13 fourth years), while 41 females (15 first years and 26 fourth years) participated. 97 Participants were between 18 and 28 years old and spoke six of the 11 official South African languages. 98

The purpose of the small focus groups was to elicit dialogue about human rights, probe participants' conceptions and ontology and disrupt their fixed meanings and understandings. 99 The unstructured nature of focus-group discussions allows for conversation to flow and develop, supporting lively discussion, free expression and dialogue on conflicting ideas or complex issues as they arise.

Three teams of researchers visited different sites to conduct the focus group interviews. A total of 21 focus-group sessions with 13 different groups of students were held. Seven of the groups met twice, five met only once and one group (S6Y1) met three times. 100 Separate focus groups were held with first years and fourth years, except for one meeting (S6Y1&4M2) on Site 6, which combined first and fourth years. 101

Pre-selected scenarios were used as a form of probing in follow-up meetings. Four different scenarios drafted by the research team sketched fictitious events regarding diverse socio-cultural, gender and religious contexts, including possible human rights violations within an educational context. This paper reflects only on the data from the scenario dealing with freedom of expression.

The focus-group discussions were audio-recorded and transcribed before being analysed by making use of Atlas Ti. By examining the data through the lens of a legal framework for applications of the right to freedom of expression, the data was allowed to crystallise as it was brought into conversation using our theoretical lens.

8 Student-teachers' application of the right to freedom of expression

This section focuses on one of the scenarios discussed in the focus-group interviews to illustrate participants' perceptions, knowledge and attitudes in their application of the right to freedom of expression in practice. The enquiry focused on the way student-teachers understand and apply the right to freedom of expression as internalised to enhance a market place of ideas, individual development, participation in the democratic process and maintaining the balance between stability and change in society and schools.

The paper will indicate that although the participant student-teachers had knowledge about human rights and the challenges of applying it in practice, the knowledge was at times superficial and uncertainties about the praxis still existed.

Two themes emanated from the data: The first theme related to student-teachers' understanding and perceptions about the right to freedom of expression; the second related to the tension between the school as custodians of the democracy and the image of the school. Selected verbatim quotes from focus-group transcripts will be used to illustrate how these themes were defined and to compare them to the theoretical understanding of human rights literacy with regards to the right to freedom of expression as the core right in a democracy. The reference style of these quotes is as follows: S1Y4M1, where S refers to the site number (1 to 6), Y refers to the year group (first or fourth years) and M refers to the meeting number of a specific group (first or second meeting).

9 Understanding the right to freedom of expression

In line with the literature, the participants acknowledged that the right to freedom of expression was a prerequisite for individual development and self-fulfilment. This sentiment was echoed amongst participants. One participant stated that "...the right to be heard is also the right to be taken seriously". (S2Y4M2) Therefore, it was of vital importance that schools need to create an environment where learners are allowed to express themselves. According to this participant, "...the school was supposed to listen to them, and allow the learner[s] to express themselves". (s2y4m2) Student-teacher participants also understood that if learners were guided and allowed to give their own opinions, critical thinking - which is one of the building bricks of a democracy - would be enhanced:

...at university level learners are encouraged to be critical of things and not take things at face value. Even if you read it, you don't just read and take it as it is. Even if it is someone's view. ( s 2 y 4 m 2)

While the student-teachers acknowledged the fact that any opinion has the potential to offend someone, they did not clearly understand the discourse that everyone has the right to freedom of expression even if what is said is untrue, and that freedom of expression can be limited the minute what is said defames another:

She was just honest in saying how the school really is. ( S 1 Y 1 M 2) So, when do you truly have freedom of speech, when you say something about yourself? And ... I mean, I will criticise myself, sometimes, but I will not talk bad about myself when I am with other people. So I will open my mouth when something is not right and if you want to punish me for it, then I feel where is that right, because then that right doesn't count? And then I get angry, ... ( s 3 y 4 m 2)

Many of the student-participants argue that as long as what you say is the truth, it would be acceptable.

You should investigate and see whether the learner is speaking the truth. If the learner is not speaking the truth, then you are allowed to give some sort of punishment. ( s 1 y 1 m 2)

This indicates that these student-teachers might not yet have comprehended the nature of the market place of ideas. The fact that they thought that unpopular or untrue views would be "punished would prevent creativity, the formation of ideas, individual development and the flowering of a true democracy". In contrast with the notion that untrue expression might be punished, some participants were aware that the right to freedom of expression guarantees that there will be no punishment even if what one says differs from the opinions of others: "You should not penalise me if I say that I am not in support of this thing and provide valid arguments on it". (s1y4m2) In line with this, some participants understood the obligation this right imposes on learners in a democracy to speak-out if schools are not acting correctly - "It needs to be known. We need professionalism in the working environment" (s1y4m2) - and that learners should not be indoctrinated when speaking out: "So I think they were wrong because they cannot channel my thinking". (S1Y4M2) Some student-teacher participants acknowledged the fact that freedom of expression implies the possibility of change:

Yes, how does change happen if something like this does not happen? So maybe she just wanted ... that something could happen and change could happen at the school. ( s 3 y 4 m 2)

The participating student-teachers understood that the right to freedom of expression would be balanced by the right to human dignity and that it was internally limited in terms of Article 16(2) if the expression boiled down to defamation or hate speech:

I did not bad mouth him. I did not use unpleasant words. I only gave my opinion. (s3y4m2) But freedom of expression, you can only stop it when it's about racism or hatred or when it hurts people, but this didn't hurt anyone. ( S 4 Y 4 M 2)

The latter quotation clearly illustrates that although the participants were aware of the inherent limitation to the right to freedom of expression if hate speech is used, the notion that any opinion does have the potential to hurt is not comprehended by everyone.

This right is also viewed by South African courts as central to a constitutional democracy to the extent to which it supports other rights.

10 The tension between the school as a custodian of democracy and the image of the school

As custodians of democracy, schools are the places where all children, but particularly vulnerable learners, should be steered and guided in the process of critical thinking to develop the skills and competencies they need to fulfil their role as fully developed citizens. Learners should therefore be trained to think critically and to speak their mind if they disagree, even if what they say is not the truth. Unfortunately, so much emphasis is placed on the image of the school that the hidden curriculum or unintended message is that free expression needs to be limited in order to preserve the image of the school:

Most of the schools, it is about the school's image and the image that should be portrayed...but what people hear is never outside. Outside is clean, but it should only stay inside and people are not allowed to hear what is going on inside. ( s 3 y 4 m 2) Then I tell them but there is violence; there is so much violence there that no one is allowed to say what is happening, and that is what it is all about. ( s 3 y 4 m 2).

Some of the student-teachers were therefore of the opinion that learners should first talk about negative things at school before revealing these in public media. They stressed loyalty to the school as a positive quality, thought the image of the school enjoyed priority, and failed even to raise the question of whether the expression would boil down to hate speech or not:

But the first thing she should have done is to go and speak to someone at the school, and if they were doing nothing about it, then go to the press. ( s 1 y 1 m 2)

On the other hand, some student-teacher participants understood that schools should not indoctrinate learners as this would work against the whole notion of critical thinking in a democracy. In this regard, one participant felt that the school could not punish learners if the school had asked for their opinion: "So I think they were wrong because they [the school] cannot channel my thinking." ( s 1 y 4 m 2) This student-teacher participant went on saying, "[y]ou should not penalise me if I say that I am not in support of this thing and provide valid arguments on it". ( s 1 y 4 m 2) Some student-teachers understood the role of the right to freedom of expression: "So the school was supposed to listen to them and allow the learner[s] to express themselves." ( s 1 y 4 m 2) In practice this is not the case, as indicated by another student-teacher participant: "Because they say it is your freedom of speech, but the moment you say something, they [the school] are out to get you." ( s 1 y 4 m 2)

Some student-teachers are aware of the fact that the school's reaction would depend on the platform that is used for free expression. The fact that they say that as a citizen one may speak one's mind but as member of the school not is an indication of how children at school are still indoctrinated into believing that the image of the school is supreme to the Constitution. This finding echoes the results from a study where learners' understanding of their right to freedom of expression was investigated. 102

Schools then are surely working against the development of the skills and competencies essential to the exercise of the right to freedom of expression, and this phenomenon is a death knell for democracy and its developments:

...this learner operated in different levels, in different contexts. The learner wrote the article as a member of the community and she wrote the assignment as a member of the school. And one other thing - we should take into consideration if they say this thing the learner crossed the line. If we can go to reality. We know that the teachers and the principal's conduct in the school is superior to that of the learners. You know, the learners are inferior. Think back to when you were still a student -you will be afraid to say something in school. For example, I could not challenge my teachers and say: you are misconducting because of this and this. There will be a lot of things happening around that but if maybe she did this thing by intention, because she knew the community and the members of parliament, the minister will protect the child. But if this was a situation happening or dealing in the school level only. There will be a problem there... ( s 1 y 4 m 2)

Seemingly, student-teacher participants still experience a tension between speaking out as critical thinkers enhancing democracy and protecting the image of the school. There is also a fine line in praxis between "washing" factual "dirty laundry" and defamation. This tension in itself is the poison killing our democracy and is clearly visible when this participant states: "So that the dirty laundry of this school, the so called perfect school, has been revealed. "( s 1 y 4 m 2) In this sense, instead of enhancing democracy, this skewed tension throws doubt not only upon the survival of democracy but also upon the preservation of human rights and the integrity of those who apply them, as suggested by one participant:

But it is like I said: It gets applied when it wants to be applied. It is like when I am in a powerful position, I will apply the rights I want to apply, disregarding what you feel. ( s 3 y 4 m 2)

11 Conclusion

From the data presented it is evident that student-teachers have a superficial knowledge of the right to freedom of expression. They are aware of the fact that this right is not absolute and may be limited. It seems as if they have a sense of the importance of the right to freedom of expression in a democracy, but they have not yet internalised what they sense, and they struggle to balance the right in praxis. Interestingly, this data confirms that of Bronstein, Glaser and Werbeloff, 103 who found the same phenomenon amongst law students. Their study found that while most student respondents support general statements in favour of free expression, their commitment to this value seems to buckle under the stress of hard test cases.

The mean levels of student support for free expression vary widely across items and mask wide variations of opinion amongst students. The fact that student-teachers, the custodians of democracy, are still not able to internalise and apply the right to freedom of expression in practice indicates that our school system still fails to be a market place of ideas, and is incapable of developing individuals as critical and individual thinkers to reach their fullest potential and to be citizens in a developed democracy. One can infer from the findings that the education system is failing to teach learners how to engage constructively in a democracy. In fact, the way that this core right, as a prerequisite for democracy, is still being misapplied after 20 years of democracy, seems to pose a threat to the survival of democracy in South Africa.

BIBLIOGRAPHY

Abrams v United States 1919 US 250 616

Cele v Avusa Media Limited 2013 2 All SA 412 (GSJ)

Handyside v United Kingdom 1976 24 A 737 (EHRR)

Holomisa v Argus Newspapers 1996 2 SA 588 (W)

Lehman v City of Shaker Heights 1974 418 US 298

Palko v Connecticut 1937 302 US 319

R v Keegstra 1990 3 697 (SCR)

RWDSU v Dolphin Delivery Ltd 1986 18720 Canada 580 (BC) S v Makwanyane 1995 3 SA 391 (CC) S v Turrell 1973 1 SA 248 (CC)

Legislation

Constitution of Canada, 1982

Constitution of the Republic of South Africa, 1996

International instruments

International Covenant on Civil and Political Rights (1966) Universal Declaration of Human Rights (1948)

Government publications

GN R776 in GG 18900 of 15 May 1998

Internet sources

LIST OF ABBREVIATIONS

DoE Department of Education

ESR Economic and Social Rights

GETC General Education and Training Certificate

IAMCR International Association for Mass Communication Research

ICCPR International Covenant on Civil and Political Rights

IJMCS International Journal of Media and Communication Studies

J L & Educ Journal of Law and Education

JMCE Journalism and Mass Communication Educator

JSR Journal for the Study of Religion

NRF National Research Foundation

RWDSU Retail, Wholesalers and Department Store Union

SAELPA South African Education Law and Policy Association

SAJE South African Journal of Education

SAJHR South African Journal of Human Rights

SAQA South African Qualification Authority

SASA South African Schools Act

UDHR Universal Declaration of Human Rights

1 Article 19 of the International Covenant on Civil and Political Rights (1966). 2 Article 19 of the Universal Declaration of Human Rights (1948). 3 Abrams v United States 1919 US 250 616; Clayton and Tomlinson Privacy and Freedom of Expression; Currie and De Waal Bill of Rights Handbook. 4 Du Toit 1993 Suid Afrikaan 5. 5 Morrow Chains of Thought. 6 Coetzee and Le Roux 1998 Tydskrif vir Chrssteiike Wetenskap 5. 7 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 8 Van Vollenhoven Learners' Understanding of their Right. 9 Roux Human Rights Literacy. 10 Roux and Du Preez 2013 http://hreid-hrlit.blogspot.com . 11 Becker, De Wet and Parker 2014 JSR; Roux Human Rights Literacy. 12 Parker 2014 JSR. 13 Smit and Oosthuizen Fundamentass of Human Rights 74. 14 Roux Human Rights Literacy. 15 Section 16 of the Constitution of the Republic of South Africa, 1996 (the Constitution). 16 Section 4.5.1 in GN R776 in GG 18900 of 15 May 1998. 17 Van Vollenhoven Learners' Understanding of their Right. 18 Malherbe "Draft Chapter". 19 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 20 Mazibuko Sowetan 6. 21 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 22 Section 36 of the Constitution. 23 Neethling, Potgieter and Visser Law of Personality. 24 R v Keegstra 1990 3 697 (SCR). 25 Section 10 of the Constitution. 26 Ceee v Avusa Media Limtted 2013 2 All SA 412 (GSJ). 27 International Covenant on Civil and Poittical Rights (1966) (ICCPR). 28 Universal Declaration of Human Rights (1948) (UDHR). 29 Preamble of the UDHR. 30 Van Vollenhoven Learners' Understanding of their Right., 31 Beatty Constitutional Law. 32 Abrams v United States 1919 US 250 616; Clayton and Tomlinson Privacy and Freedom of Expression; Currie and De Waal BUI of Rights Handbook. 33 Türk and Joinet "Freedom of Expression" 38. 34 Para 1 of the Constitution of Canada, 1982. 35 Türk and Joinet "Freedom of Expression" 38. 36 Wood 2001 SAJE 142-146. 37 Shyllon 2012 ESR Review 7-10. 38 S v Makwanyane 1995 3 SA 391 (CC) para 262. 39 Handyside v Untted Kingdom 1976 24 A 737 (EHRR) para 51; Marcus 1994 SAJHR 140-148; McQuoid-Mason et al Human Rights for All, Sachs Advancing Human Rights, Tribe American Constitutional Law. Also see Preamble of the UDHR. 40 Lehman v Ctty of Shaker Heights 1974 418 US 298. 41 Lehman v Ctty of Shaker Heights 1974 418 US 298. 42 Pakko v Connect/cut 1937 302 US 319 para 327. 43 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 44 Alston Constitutional Right to Freedom of Expression. 45 RWDSU v Dopphnn Detivery Ltd 1986 18720 Canada 580 (BC). 46 Türk and Joinet "Freedom of Expression" 38. 47 Coetzee and Le Roux 1998 Tydskrif vir Chrssteiike Wetenskap 5. 48 Clayton and Tomlinson Privacy and Freedom of Expression 112. 49 Van Vollenhoven Learners' Understanding of their Right. 50 Mawdsley, Smit and Wolhuter 2013 De Jure 132-161. 51 Emerson System of Freedom of Expression. 52 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 53 Clayton and Tomlinson Privacy and Freedom of Expression 112. 54 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 55 Alston Constitutional Right to Freedom of Expression. 56 Clayton and Tomlinson Privacy and Freedom of Expression 112. 57 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 58 Currie and De Waal Bill of Rights Handbook. 59 Van Vollenhoven Learners' Understanding of their Right. 60 S v Makwanyane 1995 3 SA 391 (CC) para 262. 61 Pako v Connecticut 1937 302 US 319 para 327. 62 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 63 Clayton and Tomlinson Privacy and Freedom of Expression 112. 64 Gordon 1984 J L & Educ 523-579. 65 See n 39. 66 Türk and Joinet "Freedom of Expression" 37. 67 Alston Constitutional Right to Freedom of Expression. 68 Prinsloo 2013 De Jure 178-205. 69 Albertyn and Davis 2010 SAJHR 188-216. 70 Section 7(1) of the Constitution. 71 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 72 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 73 SAQA 2000 http://www.saqa.org.za/docs/pol/2003/getc.pdf . 74 S v Makwanyane 1995 3 SA 391 (CC) para 262. 75 Holomssa v Argus Newspapers 1996 2 SA 588 (W) para 615. 76 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 77 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 78 Gordon 1984 J L & Educ 523-579. 79 Gordon 1984 J L & Educ 523-579. 80 Yudof When Government Speaks. 81 Mawdsley, Smit and Wolhuter 2013 De Jure 132-161. 82 Emerson System of Freedom of Expression. 83 Dugard Human Rights. 84 The International Covenant on Civil and Polttical Rights (1966). 85 Emerson System of Freedom of Expression. 86 S v Turrell 1973 1 SA 248 (CC) para 257. 87 Buckingham 1997 IJMCS 78. 88 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 89 Andsager and Ross 1995 JMCE 54. 90 Roux Human Rights Literacy. 91 Becker, De Wet and Parker 2014 JSR. 92 Roux Human Rights Literacy; Becker, De Wet and Parker 2014 JSR. 93 Roux Human Rights Literacy. 94 Becker, De Wet and Van Vollenhoven "Human Rights Literacy" 35. 95 Roux Human Rights Literacy. 96 Roux Human Rights Literacy. 97 Roux Human Rights Literacy. 98 Roux Human Rights Literacy. 99 Roux Human Rights Literacy, Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 100 Roux Human Rights Literacy. 101 Roux Human Rights Literacy. 102 Van Vollenhoven Learners' Understanding of their Right. 103 Bronstein, Glaser and Werbeloff 2012 SAJHR 55-80.

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(page 96) p. 96 Conclusion: the future of free speech

• Published: February 2009
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The Conclusion looks to how the free speech debate will continue in the future. So long as we continue to recognise free speech's importance to democracy, then the hope is that we feel braver about resisting pressure to censor ourselves for fear of offending someone. Sometimes we do need to give greater weight to other considerations besides freedom of expression. We must be clear, though, on why the protection of someone is more important than free speech and why we need to draw a line. Toleration of free speech may come by the impossibility of censoring across lines of communication such as the Internet, but this is not certain.

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Freedom Of Speech And Expression

By Tanu Priya

Editor’s Note:  Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several facets, including the right to express one’s opinion unhindered, unfettered by the fear of retribution. It is one of the most basic elements for a healthy, open-minded democracy. It allows people to freely participate in the social and political happenings of their country.

In India, this right is granted by Article 19(1)(a) . However, this right of freedom to speech and expression is not completely unchecked. Article 19 (2) allows for reasonable restrictions to be imposed on all fundamental rights, including that of freedom to speech and expression.

In Romesh Thappar v Union of India , Justice Patanjali has rightfully held that 19(1)(g) is the very basis and essence of the constitution and our democracy. Reasonable restrictions, however, he noted, should be such that others’ rights should not be hindered or affected by the acts of one man, in the case of Menaka Gandhi v. Union of India.

The judiciary has upheld the restrictions that can be imposed and the author describes them under several subheadings, but the courts have also held that the government’s interference in this right has to also be kept in check.

Introduction: Freedom of Speech and Expression

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”.

-John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. It is through free speech, people could come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizens.

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties.

Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like U niversal Declaration of Human Rights , European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.  

Freedom of Speech and Expression- Meaning & Scope

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.  It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2) . Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.[i]

It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their circumstances and the class to which they belong, the fundamental right to freedom of speech and expression would constitute a violation of Article 19(1)(a) .

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. In fact, the freedom of speech and expression gives greater scope and meaning to the citizenship of a person extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy the aforesaid rights.

In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press lat at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible’

However Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to express ones views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right includes the right to communicate, print and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1)(a) . The freedom of the press is regarded as a “ species of which freedom of expression is a genus ”[ii]. On the issue of whether ‘advertising’ would fall under the scope of the Article, the Supreme Court pointed out that the right of a citizen to exhibit films is a part of the fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Constitution.[iii]

Indian law does not expressly refer to commercial and artistic speech. However, Indian Law is developing and the Supreme Court has ruled that ‘commercial speech’ cannot be denied the protection of Article 19(1)(a ) of the Constitution. The Court has held that ‘commercial speech’ is a part of the ‘right of freedom of speech and expression’ as guaranteed by our Constitution.

The citizens of India have the right to receive ‘commercial speech’ and they also have the right to read and listen to the same. This protection is available to the speaker as well as the recipient.[iv] Freedom of Speech and Expression also includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) because the common basic characteristic of all these activities is freedom of speech and expression.[v]

Under the provisions of the Constitution of India, an individual as well as a corporation can invoke freedom of speech arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech argumentsis not limited to individuals alone. Corporations are also entitled to invoke sucharguments. The cases of Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757 and I ndian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC. 515, are of great significance. In these cases, the corporations filed a writ petition challenging the constitutional validity of notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of citizens. However, the limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.

Importance of Freedom of Speech

Freedom of Speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. Freedom of speech and liberty is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy liberties giving succor and protection to all other liberties. It is the mother of all liberties.[vi]

In a democracy, freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in the formation of public opinion on social, economic & political matters. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would help the formation of one’s opinion & viewpoint & debates on matters of public concern. So long as the expression is confined to nationalism, patriotism & love for the motherland, the use of National flag by the way of expression of those sentiments would be a Fundamental Right.

In Maneka Gandhi v. Union of India, [vii] BHAGWATI J., has emphasized on the significance of the freedom of speech & expression in these words:

“ Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential. ”

This aspect of the right to freedom of speech and expression extending the concept of citizenship to include socio-political participation of a person is critical in the process of determining the scope of right to life of a citizen under Article 21 of the Constitution . It is important to note that the scope of the “freedom of speech and expression” in Article 19(1)(a) of the Constitution has been expanded to include the right to receive and disseminate information. It includes the right to communicate and circulate information through any medium including print media, audio, television broadcast or electronic media.

The judiciary has time and again opined that the right to receive information is another facet of the right to freedom of speech and expression and the right to communicate and receive information without interference is a crucial aspect of this right. This is because, a person cannot form an informed opinion or make an informed choice and effectively participate socially, politically or culturally without receipt of adequate information. The Supreme Court in State of Uttar Pradesh v. Raj Narain31 has held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding matters of public concern.

This position was reiterated by the Court in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal 32 wherein it was held that Article 19(1)(a) includes the right to acquire and disseminate information. The Supreme Court, while opining on the right to freedom of information, further noted in Dinesh Trivedi, M.P. and Ors v. Union of India 33 that “in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare.”

The print medium is a powerful tool for dissemination and receipt of information for any citizen. Thus, access to printed material is crucial for satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the Constitution. Persons with print impairment have no access to printed material in their normal format. Failure on part of the State to make legislative provision for enabling access to persons with print impairment of material in alternative accessible formats would constitute a deprivation of their right to freedom of speech and expression and such inaction on the part of the State falls foul of the Constitution. In view of the same, it is an obligation on part of the State to ensure that adequate provisions are made in the law enabling persons with print impairment to access printed material in accessible formats.

Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press and the same is included in the freedom of expression, which is conferred on all citizens ( Virender Vs. State of Punjab , A. 1958, SC. 986 and Sakal Papers Vs. Union of India A.1962 S.C. 305). It has also been by this judgment that freedom of the press under the Indian Constitution is not higher than the freedom of an ordinary citizen.

Need to Protect Freedom of Speech and Expression

Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –

• For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. That is to say, it assists in the discovery of truth.
• Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
• For expressing belief and political attitudes – freedom of speech provides opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
• For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy.

Indian Perspective

In India under Article 19(1)(a) of the Constitution of India, “all citizens shall have the right to freedom of speech and expression”. In the Preamble to the Constitution of India the people of India declared their solemn resolve to secure to all its citizens liberty of thought and expression. The Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation.

Article 19(2) of the Constitution of India provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of speech would include both artistic and commercial speech which is required to be protected. Freedom of speech and expression would include artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) of the Constitution because the common basic characteristic of all these activities is freedom of speech and expression.

Under the Constitution of India an individual as well as corporation can invoke freedom of speech and their fundamental rights.  Freedom of Speech is not only protected from unwarranted governmental interference but also when a private party calls upon a Court to enforce rules of law whose effect would be to restrict or penalize expression. Much would depend on the issue as to whether the reference to the trademark involved has been used in the trademark sense, for example, as envisaged in Section 2(2) (a), (b) and (c) of the Trade Marks Act, 1999 . There is dearth of case law of how free speech interests are involved in trademark litigation. In a given case a party could challenge an act or omission on the part of the Registrar of Trade Marks on the ground that it infringes the fundamental right of a citizen.

For example: Freedom of speech and expression; or Registrar has acted in a manner which is against all norms of natural justice. A party could also in a given case challenge the vires of a provision in the Trade Marks Act, 1999 or the Rules framed thereunder – if it would violate the right to freedom of speech and expression.

Under the Trade Marks Act, 1999 there is no specific reference in crystal clear terms to criticism of another’s mark. However reference is invited to Section 29 (8) & (9) of the Trade Marks Act, 1999 as follows:–

“Section 29(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising

takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

is detrimental to its distinctive character; or

is against the reputation of the trade mark.”

Infringement by oral use is provided for in subsection 9 of Section 29 :

“(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.”

The position of law is that a tradesman is entitled to declare that his goods are the best in the world even if the statement is untrue, but he may not in any circumstances say that his competitor’s goods are bad or criticize his competitors goods. If he makes such a statement, it would amount to slander.

There is no ‘fair use’ clause or an ‘open end’ clause in Indian Trade Mark law. In India, there is dearth of cases on trademark infringement where the defendant has invoked freedom of speech as a defense. Joke articles in India are treated like any other and the author has not entitled to any additional immunity for the reason that the article is a humorous one.

Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1)(a) as “freedom of speech and expression”.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation.

Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri, J. in A.K. Gopalan  case, observed, “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals” .

It therefore includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.

We can see the guarantee of freedom of speech under the following heads:

Freedom of press.

Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of the press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India’s Constitution clearly sets out restrictions on free speech. The freedom of speech guaranteed under Article 19(1)(a) can be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as “offensive to modesty or decency; lewd, filthy and repulsive.” It stated that the test of obscenity is whether the publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such immoral influences, and therefore each work must be examined by itself .

With respect to art and obscenity, the Court held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked .” The Court concluded that the test to adopt in India, emphasizing community mores, is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.

Right to Information

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act , 1923 which prohibits disclosure of certain official documents. Even, Right to Information Act 2005, which specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of Constitution of India. One can conclude that ‘right to information is nothing but one small limb of right of speech and expression.

Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic Reforms 4, a three-judge bench held that the amended Electoral Reforms Law passed by Parliament is unconstitutional as being volatile of citizen’s right to know under Art. 19(1)(g) .

The’ Freedom of Speech and Expression’ Is Indeed A Very High One

In recent judgment of the Supreme Court in Khushboo v. Kannaiammal 6 upholds the right to freedom of speech and expression. Khushboo’s right to freedom of speech was violated by the institution of multiple criminal cases against her in various courts across the country and consequent harassment that she suffered.

Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed:-

1)      Security of State: Security of state is of vital importance and a government must have the power to impose a restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of the security of State. However, the term “security” is a very crucial one. The term “security of the state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.

2)      Friendly relations with foreign states: In the present global world, a country has to maintain a good and friendly relationship with other countries. Something which has the potential to affect such relationship should be checked by the government. Keeping this thing in mind, this ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India and that state.

3)      No similar provision is present in any other Constitution of the world: In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. However, it is interesting to note that member of the commonwealth including Pakistan is not a “foreign state” for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.

4)      Public Order: Next restriction prescribed by constitution is to maintain public order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”

Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.

The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.

5)      Decency or morality: The way to express something or to say something should be a decent one. It should not affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.

6)      Contempt of Court: In a democratic country Judiciary plays a very important role. In such situation, it becomes essential to respect such an institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in 2006 to make “truth” a defense.

However, even after such amendment, a person can be punished for the statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court that, “Truth based on the facts should be allowed as a valid defense if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article”. The qualification is that such defense should not cover-up to escape from the consequences of a deliberate effort to scandalize the court.

7)      Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status of another person. A person is known by his reputation more than his wealth or anything else. Constitution considers it as ground to put restriction on freedom of speech. Basically, a statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law relating to defamation is still uncodified in India and subject to certain exceptions.

8)      Incitement to an offense: This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offense. The word ‘offense’ is defined as any act or omission made punishable by law for the time being in force.

9)      Sovereignty and integrity of India: To maintain the sovereignty and integrity of a state is the prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit anyone to challenge sovereignty or to permit anyone to preach something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society.

Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating one’s views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self realization.

Two big democracies of world i.e. America and India have remarkably protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a) , which falls in fundamental right category. Indian courts have always placed a broad interpretation on the value and content of Article 19(1) (a) , making it subjective only to the restrictions permissible under Article 19(2).

The words ‘in the interest of public order’, as used in the Article 19 include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. There should be reasonable and proper nexus or relationship between the restriction and achievement of public order.

Freedom of speech and expression is the bulwark of democratic government.  This freedom is essential for the proper functioning of democratic process and is regarded as the first condition of liberty.  It occupies a preferred position in the hierarchy of liberties giving protection to all other liberties.  It has been truly said that it is the mother of all other liberties.  That liberty include the right to acquire information and disseminate the same.  It includes the right to communicate it through available media without interference to as large a population of the country, as well as abroad, as is possible to reach.  Right to know is the basis right of the citizens of a free country and Art. 19(1)(a) protects that right.  Right to receive information springs from Art 19(1)(a).

Formatted on March 14th, 2019.

[i] Radha Mohan Lal v. Rajasthan High Court,(2003) 3 SCC 427

[ii] Sakal Papers V. Union of India AIR 1962 SC 305

[iii] Odyssey Communications Pvt.Ltd. V. Lok Vidyayan Sanghatana AIR 1988 SC 1642

[iv] Tata Press v. MTNL; AIR 1995 SC 2438

[v] Maneka Gandhi V. Union of India AIR 1978 SC 597

[vi] Report of the Second Press Comm., Vol. I,34-35

[vii] AIR 1978 SC 597: (1978) 1 SCC 248

8 thoughts on “Freedom Of Speech And Expression”

According to our constitution freedom of speech is subject to permissible restrictions under Article 19(2) of the Constitution. The SC has ruled this fact, time and again, thro’ no. of judicial pronouncements.

Recently, the S.C of India, while hearing a petition from a Publisher requesting for dismissal of an action against him for publishing a Poem on Mahatma Gandhiji using obscene language ruled as under:-

“YOU CANNOT USE ABUSIVE WORDS FOR HISTORICAL FIGURES UNDER THE GARB OF ARTISTIC FREEDOM. THERE IS A COMPLETE FREEDOM OF IDEAS, BUT THE FREEDOM OF SPEECH AND EXPRESSION IS NOT ABSOLUTE. THE CONSTITUTION PROVIDES RESTRICTIONS AND IT IS RGULATED FREEDOM”. THE BENCH HEARING THE PETITION RULED.

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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.

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The Editorial Board

America Has a Free Speech Problem

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values . It is separate from the newsroom.

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

How has this happened? In large part, it’s because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.

However you define cancel culture, Americans know it exists and feel its burden. In a new national poll commissioned by Times Opinion and Siena College , only 34 percent of Americans said they believed that all Americans enjoyed freedom of speech completely. The poll found that 84 percent of adults said it is a “very serious” or “somewhat serious” problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

This poll and other recent surveys from the Pew Research Center and the Knight Foundation reveal a crisis of confidence around one of America’s most basic values. Freedom of speech and expression is vital to human beings’ search for truth and knowledge about our world. A society that values freedom of speech can benefit from the full diversity of its people and their ideas. At the individual level, human beings cannot flourish without the confidence to take risks, pursue ideas and express thoughts that others might reject.

Most important, freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence.

We’ve excerpted a few of the poll’s other questions below. Choose your answers to see how your opinions compare to Americans’.

1. Over the past year, have you held your tongue because you were concerned about retaliation or harsh criticism?

Select an answer to see the poll’s results.

2. Over the past year, have you retaliated against or harshly criticized another person because of something he or she said?

3. How much of a problem is it that some Americans do not exercise their freedom of speech in everyday situations out of fear of retaliation or harsh criticism?

The Times Opinion/Siena College poll found that 46 percent of respondents said they felt less free to talk about politics compared to a decade ago. Thirty percent said they felt the same. Only 21 percent of people reported feeling freer, even though in the past decade there was a vast expansion of voices in the public square through social media.

“There’s a crisis around the freedom of speech now because many people don’t understand it, they weren’t taught what it means and why it matters,” said Suzanne Nossel, the chief executive of PEN America, a free speech organization. “Safeguards for free speech have been essential to almost all social progress in the country, from the civil rights movement to women’s suffrage to the current fights over racial justice and the police.”

Times Opinion commissioned the poll to provide more data and insight that can inform a debate mired in extremes. This editorial board plans to identify a wide range of threats to freedom of speech in the coming months and to offer possible solutions. Freedom of speech requires not just a commitment to openness and tolerance in the abstract. It demands conscientiousness about both the power of speech and its potential harms. We believe it isn’t enough for Americans to just believe in the rights of others to speak freely; they should also find ways to actively support and protect those rights.

We are under no illusion that this is easy. Our era, especially, is not made for this; social media is awash in speech of the point-scoring, picking-apart, piling-on, put-down variety. A deluge of misinformation and disinformation online has heightened this tension. Making the internet a more gracious place does not seem high on anyone’s agenda, and certainly not for most of the tech companies that control it.

But the old lesson of “think before you speak” has given way to the new lesson of “speak at your peril.” You can’t consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.

It is worth noting here the important distinction between what the First Amendment protects (freedom from government restrictions on expression) and the popular conception of free speech (the affirmative right to speak your mind in public, on which the law is silent). The world is witnessing, in Vladimir Putin’s Russia, the strangling of free speech through government censorship and imprisonment. That is not the kind of threat to freedom of expression that Americans face. Yet something has been lost; the poll clearly shows a dissatisfaction with free speech as it is experienced and understood by Americans today.

Consider this finding from our poll: Fifty-five percent of respondents said that they had held their tongue over the past year because they were concerned about retaliation or harsh criticism. Women were more likely to report doing so — 61 percent, compared to 49 percent of men. Older respondents were less likely to have done so than other age groups. Republicans (58 percent) were slightly more likely to have held their tongues than Democrats (52 percent) or independents (56 percent).

At the same time, 22 percent of adults reported that they had retaliated against or were harshly critical of someone over something he or she said. Adults 18 to 34 years old were far more likely to have done so than older Americans; liberals were more likely to have done so than moderates or conservatives.

Elijah Afere, a 25-year-old I.T. technician from Union, N.J., said that he worried about the larger implications of chilled speech for democracy. “You can’t give people the benefit of the doubt to just hold a conversation anymore. You’ve got to worry about feeling judged,” he said. “Political views can even affect your family ties, how you relate to your uncle or the other side. It’s really not good.”

Roy Block, 76, from San Antonio, described himself as conservative and said he has been alarmed by scenes of parents being silenced at school board meetings over the past year. “I think it’s mostly conservatives that are being silenced,” he said. “But regardless, I think it should be a two-way street. Everybody should have an opportunity to speak and especially in open gathering and open forum.”

1. Do you feel more free, less free or as free as you did before to express your viewpoint in most situations on a daily basis today than you did 10 years ago on politics?

2. Do you feel more free, less free or as free as you did before to express your viewpoint in most situations on a daily basis today than you did 10 years ago on race relations?

Pollsters asked how free people felt today to discuss six topics — including religion, politics, gender identity and race relations — compared to 10 years ago: more free, less free or the same. Those who felt freest were Black respondents: At least 30 percent of them said they felt more free to speak on every topic, including 42 percent on race relations, the highest share of any racial or ethnic group. Still, that sentiment of more freedom among Black respondents reached only 46 percent, not a majority (the 46 percent being on the issue of gender identity).

At the same time, a full 84 percent of Black people polled shared the concern of this editorial that it was a “very serious” or “somewhat serious” problem that some Americans do not exercise their freedom of speech out of fear of retaliation or harsh criticism. And 45 percent of Black people and nearly 60 percent of Latinos and white people polled reported that they’d held their tongues in the past year out of fear of retaliation or harsh criticism.

While the level of national anxiety around free speech is apparent, the solutions are much less clear. In the poll, 66 percent of respondents agreed with the following: “Our democracy is built upon the free, open and safe exchange of ideas, no matter how different they are. We should encourage all speech so long as it is done in a way that doesn’t threaten others.” Yet a full 30 percent agreed that “while I support free speech, sometimes you have shut down speech that is antidemocratic, bigoted or simply untrue.” Those who identified themselves as Democrats and liberals showed a higher level of support for sometimes shutting down such speech.

The full-throated defense of free speech was once a liberal ideal. Many of the legal victories that expanded the realm of permissible speech in the United States came in defense of liberal speakers against the power of the government — a ruling that students couldn’t be forced to recite the Pledge of Allegiance, a ruling protecting the rights of students to demonstrate against the Vietnam War, a ruling allowing the burning of the American flag.

And yet many progressives appear to have lost faith in that principle. This was a source of great frustration for one of those who responded to our poll, Emily Leonard, a 93-year-old from Hartford, Conn., who described herself as a liberal. She said she was alarmed about reports of speakers getting shouted down on college campuses. “We need to hear what people think, even though we disagree with them. It is the basis of our democracy. And it’s absolutely essential to a continuing democracy,” she said. “Liberal as I am — a little to the left of Lenin — I think these kids and this whole cancel culture and so-called woke is doing us so much harm. They’re undermining the Constitution. That’s what it comes down to.”

The progressive movement in America has been a force for good in many ways: for social and racial justice, for pay equity, for a fairer system and society and for calling out hate and hate speech. In the course of their fight for tolerance, many progressives have become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness that the right long displayed and the left long abhorred. It has made people uncertain about the contours of speech: Many know they shouldn’t utter racist things, but they don’t understand what they can say about race or can say to a person of a different race from theirs. Attacking people in the workplace, on campus, on social media and elsewhere who express unpopular views from a place of good faith is the practice of a closed society.

The Times does not allow hate speech in our pages, even though it is broadly protected by the Constitution, and we support that principle . But there is a difference between hate speech and speech that challenges us in ways that we might find difficult or even offensive.

At the same time, all Americans should be deeply concerned about an avalanche of legislation passed by Republican-controlled legislatures around the country that gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.

It goes far beyond conservative states yanking books about race and sex from public school libraries . Since 2021 in 40 state legislatures, 175 bills have been introduced or prefiled that target what teachers can say and what students can learn, often with severe penalties. Of those, 13 have become law in 11 states, and 106 are still under consideration. All told, 99 bills currently target K-12 public schools, 44 target higher education, and 59 include punishment for violators, according to a running tally kept by PEN America . In some instance s, the proposed bills failed to become law. In other cases, the courts should declare them unconstitutional.

These bills include Florida’s “Don’t Say Gay” bill , which would restrict what teachers and students can talk about and allows for parents to file lawsuits. If the law goes into force, watch for lawsuits against schools that restrict the free speech rights of students to discuss things like sexuality, established by earlier Supreme Court rulings.

The new gag laws coincide with a similar barrage of bills that ostensibly target critical race theory, an idea that has percolated down from law schools to the broader public in recent years as a way to understand the pervasiveness of racism. The moral panic around critical race theory has morphed into a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive. Several states have now passed these gag laws restricting what can be said in public schools, colleges and universities, and state agencies and institutions.

In passing laws that restrict speech, conservatives have adopted the language of harm that some liberals used in the past to restrict speech — the idea that speech itself can cause an unacceptable harm, which has led to a proliferation of campus speech codes and the use of trigger warnings in college classrooms.

Now conservatives have used the idea of harmful speech to their own ends: An anti-critical-race-theory law in Tennessee passed last year , for instance, prohibits promoting the concept that “an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex” — a measure aimed at avoiding the “distress” that students might feel when learning about racist or misogynist elements of American history. (Unmentioned, of course, is the potential discomfort felt by students who are fed a whitewashed version of American history.)

Liberals — and anyone concerned with protecting free speech — are right to fight against these pernicious laws. But legal limits are not the only constraints on Americans’ freedom of speech. On college campuses and in many workplaces, speech that others find harmful or offensive can result not only in online shaming but also in the loss of livelihood. Some progressives believe this has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.

Free speech is predicated on mutual respect — that of people for one another and of a government for the people it serves. Every day, in communities across the country, Americans must speak to one another freely to refine and improve the elements of our social contract: What do we owe the most vulnerable in our neighborhoods? What conduct should we expect from public servants? What ideas are so essential to understanding American democracy that they should be taught in schools? When public discourse in America is narrowed, it becomes harder to answer these and the many other urgent questions we face as a society.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Twitter (@NYTopinion) and Instagram .

An earlier version of this editorial mischaracterized a Tennessee law banning the teaching of critical race theory. It prohibits promoting the concept that “an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex.” It does not ban lesson plans that could cause students distress.

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

Argumentative Essays on Freedom of Speech

Freedom of speech essay topic examples, argumentative essays.

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

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

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

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

Compare and Contrast Essays

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

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

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

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

Descriptive Essays

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

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

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

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

Persuasive Essays

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

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

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

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

Narrative Essays

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Free Speech Belongs to All of Us

Personal perspective: restrict freedom of expression, and democracy suffers..

Updated May 18, 2024 | Reviewed by Ray Parker

• Several years ago, free speech was a hot topic. Many touted it as a tool of the far right.
• Now, with many protests related to the Middle East occurring, free speech is touted by political progressives.
• Protecting free speech rights includes expressions we agree with and those we disagree with.
• When we pick and choose which ideas should be supported by free speech rights, democracy itself takes a hit.

Several years ago, our campus dis-invited a conservative speaker who was set to speak on issues related to the then-upcoming 2016 presidential election. While I identify politically very differently from said speaker (proud member of the Working Families Party of New York right here, if you're wondering), I truly believe in the importance of freedom of speech and its several sibling concepts (e.g., academic freedom and open inquiry). As an academic who is interested in having ideas from a broad array of viewpoints be expressed and explored as part of knowledge creation, I care deeply about ensuring people's right to express themselves. In 2016, I agreed to head a task force on free speech for the campus to help our community deal with the dis-invite, which many folks found concerning.

At the time, many people were unhappy that said conservative speaker was re-invited. And I think that the free speech task force that I headed may not have been the most popular entity on campus at the time. But regardless of how ardently I personally disagreed with pretty much everything that this particular speaker said (who did end up speaking on campus eventually), to this day, I stand by the basic principle of freedom of speech (that is done in a safe and non-defamatory way, of course). Allowing him to speak at a public university within standard parameters that surround free speech, such as those pertaining to safety, defamation, and genuine hate speech, was, as I see it, simply the right thing to do. And if people disagreed with his points, then this forum would allow them to raise their concerns directly with him in a public manner. And that is exactly what happened.

Back then (about eight years ago now), supporting free speech was often conflated in people's minds with some kind of far-right agenda—an agenda that is often antithetical to ideological norms on many campuses today (see Burmila, 2021). I heard people argue that free speech needed to have limits, that it is an inherently unfair concept as some people in society have more opportunities to express themselves than do others, and that free speech was something of a tool of the far-right to maintain some sort of status quo. While I am actually sympathetic to some of these concerns, at the end of the day, a democracy without the right to free speech is not really a democracy at all in my book.

A lot has changed in eight years. Without getting into too much of the details, the current war between Israel and Hamas has, throughout the world, it seems, given the topic of free speech front-and-center stage once again.

However, it is interesting to see that the politics of free speech seem to have changed—partly as a matter of convenience. On my home campus (along with many campuses), several students chose to exercise their free speech rights to make statements against much of the brutality and horror that has been launched as part of that war. Students, professors, and all kinds of activists have been taking to activism (e.g., assembling to express their opinions, carrying picket signs that express their views, etc.). As an advocate of free speech (see a recent paper that I (along with several others) coauthored related to this issue, Clark et al., 2023 ), I wholeheartedly support these students (and other activists) in their efforts—regardless of my stance on the issues that they are concerned about. In other words, to my mind, free speech protections and rights must be distributed across the board (again, keeping in mind standard limitations pertaining to such issues as inciting violence, defamation, libel, etc.).

The Free Speech Irony of 2024

It is more than a little interesting to me that the same people who argued against free speech when it came to dis-inviting conservative speakers seem to be adamantly standing by the tenets of free speech and First Amendment rights when it comes to supporting expressions about the Hamas/Israel war on campus. By and large, these campus protests (conspicuously documented at such campuses as UCLA and Columbia—along with many others) have taken a pro-Palistinean viewpoint. And given that more than 30,000 Palestinians have lost their lives in this conflict (with a large proportion of the deceased having been children), it is not hard to understand the outrage and concerns that are being expressed (although, of course, this is a famously complex issue with deep historical and political roots—all of which is beyond the purview of this piece). In any case, a true advocate of freedom of speech should be blind to any particular viewpoint that is being expressed. That is the whole idea of free speech in the first place.

Many academics who decried free speech several years ago when conservative speakers were being dis-invited from campuses left and right are now citing the importance of free speech when it comes to allowing for peaceful protests and demonstrations that are largely consistent with their viewpoints. If it sounds like I'm calling some academics out as hypocritical on this issue, well, I guess I am.

When It Comes to Free Speech, We Cannot Pick and Choose

When people support free speech on a convenience basis, free speech rights become lost. The First Amendment of the Constitution does not specify that freedom of speech applies to some viewpoints but not to others. We may disagree ardently with someone's viewpoint. But disallowing that viewpoint to be expressed—particularly in public, government-owned spaces (such as campuses of state universities)—has the capacity to reduce freedom of expression for all of us down the line.

Then They Came for Me

This renowned quote, "... then they came for me ..." is often attributed to Martin Niemöller in reference to the atrocities of the Holocaust. This point, which speaks for itself in these five simple yet chilling words, bears importance on the issue of reducing free speech rights. The second that people start to pick and choose what ideas are allowed to be expressed freely and what ideas are not, we all (perhaps without realizing it) start down a slippery slope. If a strong and vocal group successfully shuts down free expression regarding Issue X, that could come back and bite those same individuals at a later point when they are trying to express their viewpoints on Issue Y. The second that people in a democracy start to pick and choose what viewpoints are allowed to be expressed freely and what viewpoints are not, down the line, free speech rights end up being diluted for everyone.

When it comes to efforts to reduce the free speech of others, people shouldn't be surprised that, at some point, similar efforts may well be directed at them. In other words, if you actively take steps to reduce the free speech of others, and free speech rights become diluted in general, the "anti free speech police" may well come for you one day.

Bottom Line

I feel fortunate to live in a democracy. It is not perfect. Not by any means. But I find myself as someone with a lot to say on lots of topics and I am truly grateful for free speech rights (and its sibling that we call academic freedom ). Being disallowed to express certain perspectives to study certain topics or to present certain research findings is nothing short of censorship.

When it comes to freedom of expression, whether we like it or not, we need to realize that this right applies not only to our own viewpoints or ideas but also to the viewpoints and ideas of those with whom we may disagree quite ardently. The second that our communities start to limit freedom of expression for selected viewpoints, the rights of freedom of expression for everyone become diluted. And our democracy actually becomes less of a democracy. And I would guess that most people don't want that.

———————————————-

Note: This piece was partly inspired by conversations with SUNY New Paltz political scientist, Dr. Dan Lipson.

Burmila E. Liberal Bias in the College Classroom: A Review of the Evidence (or Lack Thereof). PS: Political Science & Politics . 2021;54(3):598-602. doi:10.1017/S1049096521000354

Clark CJ, Jussim L, Frey K, Stevens ST, Al-Gharbi M, Aquino K, Bailey JM, Barbaro N, Baumeister RF, Bleske-Rechek A, Buss D, Ceci S, Del Giudice M, Ditto PH, Forgas JP, Geary DC, Geher G, Haider S, Honeycutt N, Joshi H, Krylov AI, Loftus E, Loury G, Lu L, Macy M, Martin CC, McWhorter J, Miller G, Paresky P, Pinker S, Reilly W, Salmon C, Stewart-Williams S, Tetlock PE, Williams WM, Wilson AE, Winegard BM, Yancey G, von Hippel W. Prosocial motives underlie scientific censorship by scientists: A perspective and research agenda. Proc Natl Acad Sci U S A. 2023 Nov 28;120(48):e2301642120. doi: 10.1073/pnas.2301642120. Epub 2023 Nov 20. PMID: 37983511.

Glenn Geher, Ph.D. , is professor of psychology at the State University of New York at New Paltz. He is founding director of the campus’ Evolutionary Studies (EvoS) program.

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Freedom Of Speech And Expression

The freedom of speech and expression is regarded as first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all the other liberties. In modern time it is widely accepted that the right to freedom of speech is the essence in the society and it must be safeguarded all the time. The first principle of a free society is an untrammeled flow of words in a open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of the particular society and ultimately for the state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. The freedom of speech and expression is a very important fundamental right under the Constitution. It is indispensible for the development of one’s own individuality and for the success of parliamentary to democracy. It is said that in a democracy the right to free expression is not only the right of an individual but rather a right of the community to hear and be informed. The freedom of speech and expression is not only guaranteed by the Constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European Convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talks about freedom of speech and expression. Origin of Freedom of Speech And Expression The concept of freedom of speech originated long back. England’s Bill of Rights 1689 adopted freedom of speech as a constitutional right and still in effect. The French Revolution in 1789 adopted the Declaration of Rights of Man and of Citizen. This further affirmed the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech in Article 11 states: “The free communication of ideas and opinions is one of the most precious of the right of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”. The Universal Declaration of Human Rights that was adopted in the year 1948 also states that everyone should have the freedom to express their ideas and opinions. The freedom of speech and expression is recognized as a human right under Article 19 and has now formed a part of the international and regional human rights law. In International human rights the freedom of speech and expression is recognized in International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that- “Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of speech and expression ; the right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any other media of their choice”. Meaning of Freedom of Speech And Expression The Constitution of India guarantees various fundamental rights to its citizens. One such important right is right to freedom under Article 19. This includes right to freedom of speech and expression, right to assemble peacefully and without arms, freedom to form associations and unions, right to move freely throughout the territory of India, right to reside and settle in any part of the territory of India and right to practice and profession or to carry on any occupation, trade or business. Under this research work, it closely concerns with the Article 19(1)(a) of the Constitution of India. Article 19(1)(a)guarantees that all the citizens have the right to freedom of speech and expression . This right is available only to the citizens of India and not available to any person who is not a citizen of India i.e. foreign nationals. Freedom of speech and expression means the right to express one’s own conviction and opinions freely by means of words of mouth, writing, printing, picture or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representations such as gesture, signs and the like. The expression connotes also publication and thus the freedom of press is included in this category .The Freedom of press is regarded as a species of which the freedom of expression is a genus. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian state is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy aforesaid rights. In Romesh Thappar v State of Madras, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by the freedom of circulation of a publication is of little value without circulation. Importance of Freedom of Speech Amd Expression “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton. John argued that without human freedom there can be no progress in science, law or politics, which according to him required free discussion of opinion. Mill’s on Liberty, published in 1859 became a classic defense of the right to freedom of expression. John argued that truth drives out falsity, therefore, the free expression of ideas, true or false should not be feared. The truth is not stable or fixed but evolves with time. John also argued that free discussion is necessary to prevent the “deep slumber of a decided opinion”. The discussion would drive the onwards March of truth and by considering false views the basis of true views could be re-affirmed. An opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which sped can justifiable suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech. “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people and for the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential”. In 1927, in Whitney v. California, Louis Brandies J, made a classic statement on the freedom of speech in the context of the U.S Constitution: “Those who won our independence believed that the final end of the state was to make men free to develop their faculties. They believed liberty to be secret of happiness and courage to be the secret of liberty. They believed that the freedom to think as you will and to speak and assembly discussion would be futile... that public discussion is a political duty; and that this should be a fundamental principle of the American government.” The Right to freedom of speech and expression as per as Indian Constitution mean the right to express one’s own convictions and opinions freely. The word “freely” means including by words of mouth, writing, printing, banners, signs, and even by way of silence. The supreme court of India has held that hosting the National Flag by citizens is a form of freedom of speech and expression in Union of India v. Naveen Jindal and Anr. The Right to Information (RTI) emerges as a fundamental right under Article 19(1)(a), as a freedom of speech and expression are meaningless without access to information. Under freedom of speech and expression, there is no separate grantee of freedom of press and the same is included in the freedom of expression, which is conferred on all the citizens in Virender v. State of Punjab and Sakal Papers v. Union of India . It has also been by this judgment that freedom of press under the Indian Constitution is not higher than the freedom of an ordinary citizen. Need To Protect Freedom of Speech And Expression Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. These are four important justification for freedom of speech: 1. To discover truth: Historically the most durable argument for a free speech principle has been based on the importance of open discussion to the discovery of truth. It is evident from the famous funeral address given by pedicles as back in 431 BC Athenians, he pedicles out, did not consider public discussion merely something to be put up with; rather they believed that the best interact of the city could not be served with a full discussion of issue before the assemble. If restrictions as speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. The best test of truth is power of the thought to get it accepted in the competition of market. The truth would emanate from a ‘free trade in ideas’ on intellectual competition. 2. Non self- fulfillment: A second major theory of free speech sees it as integral aspect of each individual rights to self development and fulfillment. Restrictions inhibit our personality and its growth. The reflective mind, conscious of options and the possibilities for growth, distinguished human beings from animals. Freedom of speech is also closely linked to other fundamental freedoms. Thus, for full- fulfillment development of personality, freedom of speech and expression is highly essential. 3. Democratic value: Freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. It is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succor and protection to all other liberties. It has been truly said that it is mother of all other liberties. In a democracy, freedom of speech and expression open up channels of the discussion of issues. Freedom of speech plays a critical role in the formation of public opinion in social, political and economic matters. 4. To ensure pluralism: Freedom of speech reflects and re in force pluralism, ensuring that different types of lives are validated and promote the self esteem of those who follow a particular life- style. The French Council Constitutional and Italian Constitutional court have ruled that the free speech rights of media corporations may be limited to ensure that the Constitutional value of pluralism is safeguarded. So, it can be concluded that the freedom of speech enables the discovery of truth, is crucial to the working of a democratic Constitution is an aspect of human self fulfillment or autonomy. It is the speaker’s interest of audience in receiving ideas and information. Grounds For Restriction It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolute or completely unrestricted. Article 19(2) specifies the grounds to which reasonable restrictions on the freedom of speech and expression can be imposed: a) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term ‘security of state’ refers only to serious and aggravated forms of public disorder e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. While, speeches or expressions on the part of an individual, which incite to or encourage the commission of violent crimes, such as murder, are matters which would undermine the security of State. The expression ‘security of the state’ in Article 19(2) does not merely mean as danger to the security of the entire country, but endangering the security of a part of the State would also involve a threat to the security of the State. b) Friendly relations with Foreign stat: This ground was added by the Constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardy the maintenance of good relations between India and that State. No similar provision is present in any other Constitution of the World. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. It is to be noted that members of the Commonwealth including Pakistan is not a ‘foreign state’ for the purposes of this Constitution. The question arises before the Supreme Court whether a restriction can be imposed on the freedom of speech and expression on the ground of its prejudicial to a Commonwealth country. The Court stated that a country may not be regarded as a foreign State for the purpose of the Constitution, but may be regarded as a foreign power for other purposes. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan. c) Public Order: This ground was also added by the Constitution (First Amendment) Act, 1951. The concept of ‘public order’ is wider than ‘security of state’. ‘Public order’ is an expression of wide connotation and signifies that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established. Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus, implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Thus, creating internal disorder or rebellion would affect public order. However, mere criticism of Government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus, a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some cases those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order. d) Decency or Morality: These are terms of variable content having no fixed meaning for ideas about decency or morality; vary from society to society and time to time depending on the standards of morals prevailing in the contemporary society. Thus, words ‘morality’ or ‘decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. The Apex Court123 ruled that the words ‘decency and morality’ is not confined to sexual morality alone. The ordinary meaning of the ‘decency’ indicates that the action must be in conformity with the current standards of behavior or propriety. The Court has cited with approval the following observations from an English case. “….Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting or revolting….” e) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. It cannot be held as law that in view of the constitutional protection of freedom of speech and expression, no one can be proceeded with for the contempt of court on the allegation of scandalizing or intending to scandalize the authority of any Court. Section 2(a) of the Contempt of Courts Act, 1971, provides that ‘contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt’. f) Defamation: A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. According to Winfield, defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in estimation of right thinking members of society generally or tends to make them shun or avoid him. The civil law relating to defamation is still un codified in India and subject to certain exceptions. Section 499 of the Indian Penal Code, 1860, defines the offence of defamation. It recognizes both slander and libel. g) Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, s1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offences. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force. The incitement to an offence does not refer to incitement to break a law. Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2). h) Sovereignty and Integrity of India: This ground was also added to Article 19(2) by the Constitution (Sixteenth Amendment) Act, 1963. The main purpose is to guard the freedom of speech and expression from being used to assail the sovereignty and territorial integrity of the Country. Sedition: It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed. As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. The Supreme Court held that section 124-A of the Indian Penal Code, 1860 was limited to acts involving an intention or a tendency to create disorder or disturbance of law and order or incitement to violence and was not violative of Article 19(1)(a) read with Article 19(2) of the Constitution. Conclusion It can be easily concluded that right to freedom of speech and expression is one of the most important fundamental rights. It includes circulating one’s views by words or in writing or through audio-visual instrumentality, advertisements or through any other communication channel. It also comprises of right to information, freedom of press etc. Thus, this fundamental right has a vast scope. From the above case law analysis, it is evident that the Court has always placed a broad interpretation on the value and contents of Article 19(1)(a), making it subjective only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or choke this freedom have always been firmly repelled, more so when public authorities have betrayed tyrannical tendencies.

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• Constitutional Law

Right to Freedom of Speech and Expression

• December 23, 2020
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Through this article, the author seeks to understand the meaning of ‘Right to Freedom of Speech and Expression. This article has been authored by Sidharth Sabu, associated with the National University of Advanced Legal Studies

Table of Contents

Introduction

Article 19(1) (a) of the Constitution grants the freedom of speech and expression, of of the most essential rights a democratic state ought to offer to its citizens. To speak and express one’s feelings in various forms such as words, signs, art, etc without fear of sanction is indispensable as it ensures smooth participation of the citizens in political and social affairs pertaining to the state.

The preamble to the constitution echoes the principle of free speech and expression in the words-“Liberty of thought, expression, belief, faith, and worship”. Free speech and expression have been recognized under various international conventions such as the Universal Declaration of Human rights, the European Convention on Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights.

The makers of the constitution, besides including free speech and expression have also included the grounds on which the state may impose reasonable restrictions on speech and expression.

Free speech also covers press rights in India as unlike in the US, the constitution does not provide any special rights to the press. The concept of Free speech has evolved over time through various case laws to encompass a wide range of subsidiary rights which will be looked into in detail in the article.

In Romesh Thapar v Union of India [1] the Supreme Court held that Freedom of speech and expression lay at the foundation of all democratic organizations without which free political discussions and political education would not be possible thereby making it impossible for the proper functioning of the popular government.

Hence only very narrow and stringent limits have been set to permissible legislative abridgment of free speech.  Only those restrictions against free speech that could be detrimental to the sovereignty and integrity of India and the Security of the state would be permitted as reasonable restrictions.

Facets of Free Speech

Like stated earlier, Freedom of speech and expression is a multi dimensional concept which encompasses within its ambit a number of subsidiary rights which were later added on by case laws.

Right to Circulate and Publish

Unlike the US, the constitution of India does not treat press rights separately from free speech. In Sakil Papers v Union of India [2], the Supreme Court observed that freedom of the press is in fact the species of which freedom of expression is the genus. In Virendra v State of Punjab [3], it was held by the Supreme Court that freedom of the press should be subjected to the reasonable restrictions lai in the constitution so as to prevent the propagation of matter detrimental to the public interest.

In Sakal Papers v Union of India , the Supreme Court held that all citizens had the right to propagate ideas by way of publishing, disseminating, and circulating. Freedom of Speech and Expression also includes the volume of circulation and thus, a law intending to curtail the volume of circulation of a newspaper directly infringes freedom of speech and expression.

In MSM Sharma v Krishna Sinha [4], the Supreme Court held that a non-citizen running a newspaper shall not be covered within the ambit of freedom of speech and expression under Article 19(1)(a). In Bennet Coleman and Co v Union of India [5] , it was held by the Supreme court that the newspaper shall be given the freedom to determine the number of pages and the volume of circulation. Government interference in this regard would mean direct infringement of free speech.

Right to Conduct Interviews

Press has another important right of conducting interviews with consenting individuals. However, this right limited such that there is no compulsion on any individual to provide information to the press.

The limited scope of the right of the press to conduct interviews was an aid in Prabha Dutt v Union of India [6] wherein the court that a newspaper does have the right to conduct interviews but that does not mean that an interview can be conducted against the wish of the individual to be interviewed.

In this instant case, a newspaper reporter wanted to take interview two prisoners who were convicted of murder under the death sentence. They were denied the right to conduct this as the prisoners did not consent to it. This position of the Supreme Court was reiterated by the Delhi High Court in State v Charulatha Joshi [7] .

Right to Broadcast

The evolution of free speech has widened its scope to include the right to broadcast within its ambit.

In Odeyssey Communications (P) Ltd v Lokvidayan Sanghatana [8] , it was held by the Supreme Court that every citizen had the rigt to exhibit films through Doordarshan. Here, the court held that the fil could not be denied broadcast grounds that it would promote superstitions.

In LIC v Manubhai D Shah [9] , a documentary based on the Bhopal Gas Tragedy was denied broadcast on grounds that the subject had lost its relevance and that it criticized the government. the Court held that the onus was upon the party restricting the film to show that the film was not in conformity with the law.

Another important case that discussed the matter of broadcasting as a right was Secretary, Ministry of Information and Broadcasting v Cricket Assn. of Bengal[10] in which the Supreme Court took a similar stand as mentioned in the above cases. This case also discussed another subsidiary of Free Speech, ie, the Right to entertain and to be entertained. This is limited, however, by the limited availability of airway, or the medium through which the matter is transmitted.

Right to Report Judicial Proceedings

Proceedings inside a court of law can be reported for the purpose of ensuring transparency of judiciary. This particular right is being practiced on a daily basis by media where proceedings of important cases are recorded and are reported in newspaper.

However, this right is not absolute. There are cases involving sensitive issues that need to be conducted in closed chambers denying entry to the press. The Supreme Court held in Naresh Shridhr Mirajkar v State of Maharashtra[11] that the courts may restrict the publicity of proceedings in the interest of justice. However, this power ought to be used very cautiously.

Right To Advertise/ Commercial Speech

The right to advertise or the right to commercial speech is also a recognized facet of free speech under Article 19(1)(a). In Tata Press Ltd v MTNL , the Supreme Court observed that commercial speech or advertisements are essential information about a product in the market. Being n economic information, it is published for the benefit of the general public and hence it shall be included within the ambit of Article 19(1)(a).

In the Sakal Papers case, the Supreme Court had held that imposing limitations on advertisements would directly affect the circulation of the newspaper resulting in the infringement of free speech and expression.

Right to Dissent

A democratic society shall work smoothly only when the government makes itself open to criticism. Government policies ought to be analysed, discussed and the flaws are to be pointed out and criticized. Expressing dissent to government policy should not be met with unreasonable state action as it is protected by free speech and expression under article 19(1)(a).

In Director General of Dooradarshan v Anand Patwardhan [12], it was held by the Supreme Court that the government shall not restrict free speech on grounds that it highly criticizes the government.

In Baldev Singh Gandh v State of Punjab [13],it was held by the Supreme Court that criticism of the government measure even by an elected representative shall not be considered misconduct. Dissent does not necessarily mean it should be aimed at the government. The dissent could be against something which is socially agreeable.

In Kushbu v Kanniamal [14] , the Supreme Court upheld the right of an individual to have opinions that were unpopular or contrary to mainstream social practices.

In Srishti School of Arts Design and Technology v Central Board of Film Certification [15] , it was held by the Supreme Court that the constitutional framework of the freedom of speech and expression as enshrined in  Article 19(1)(a)  of the Constitution provides democratic space to a citizen to put forth a view which may be unacceptable to others but does not on that score alone become vulnerable to excision by way of censorship.

Right to Portray Social Evil

In art forms such as cinema, there may be instances where the makers will have to show social evils in the film as it is happening in the society.

In K A Abbas v Union of India [16] , the Supreme Court held that restriction cannot be imposed on a film merely on the fact that social evils such as violence, rape were portrayed in it. However, it is to be seen as to how the theme has been handled by the makers and whether the depiction of the evil is necessary for the development of the plot.

The Supreme Court in Bobby Arts International v Om Pal Singh [17] observed that in the film Bandit Queen- the biopic of Phoolan Devi, there were extremely graphic sequences depicting the horrid experiences of Phoolan Devi including rape at a very young age.

The Court held that those specific scenes were needed to be portrayed in order to build the plot and that it is the gruesomeness of these scenes is that makes the audience feel for the protagonist.

Right to Portray Historic Events

An artist or a film maker has the right to present a historical event and merely because of the possibility that the recall of the event cold result in tension in the society, it shall not be subjected to censorship.

In Srishti School of Art Design and Technology v Central Board of Film Certification, it was held by the Supreme Court that a documentary depicting the visuals of the Babari Masjid incident cannot be censored on the ground that the documentary had a difference of opinion with States’ version of the whole incident.

Right to Silence

In Bijoe Emmanuel v State of Kerala [18] , a citizen’s right to remain silent when the National Anthem plays was upheld. It was held by the court that freedom of speech and expression also entailed the freedom to remain silent.

Reasonable Restrictions on Free Speech and Expression

It is  known fact that fundamental rights are not absolute rights as they are limited by reasonable restrictions that could be imposed by the state from time to time in the interest of a number of factors like public order, national security etc.

This article shall discuss briefly, the grounds under which the state may impose reasonable restrictions on free speech and expression. Article 19(2) lays down the grounds under which reasonable restrictions may be imposed by the state. The Grounds are;

Sovereignty/ and Integrity of India

This ground was added as a result of the surging secessionist movements n several part of the country. Chinese insurgencies was gaining streingth around the North-East, strong demands for a separate Sikh homeland and demands for Dravida Nadu fir the South Indian states were also becoming stronger.

In 1963, a bill was introduced in the Parliament by the then Law Minister Ashoke Kumar Sen seeking to vest upon the Parliament powers to impose restrictions upon those individuals or organizations who were instigating secessionist movements in the country. N pursuant to the powers granted by this amendment, the government enacted the Criminal Law Amendment Act, 1961 and the Unlawful Activities (Prevention) Act, 1967 which criminalised forms of speech and expression that aided such secessionist movements.

Security of the State and Public Order

The term public order means public peace, safety and tranquility. It was added to the constitution as a ground to impose reasonable restrictions on free speech by the First Amendment Act, 1951 to bypass the decision of eth Supreme Court in Romesh Thopar v State of Madras [19] where the court  held that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the state or its overthrow, such a law cannot fall within the restriction under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.

After the first amendment, in the case Ramnji Lal Modi v State of UP, the Supreme Court observed that the phrase ‘ In the interest of public order’ had wider connotations. It is not limited to maintenance of public order alone as there could be enactments that did not directly result in the maintenance of public order but would still be in the interest of public order. 

Further the Supreme court in Supdt. central prison v Ram Manohar Lohia [20] held that there has to be a reasonable and rational relationship between the restriction to be imposed and the object sought to be achieved, not a far fetched or a remote connection.

Friendly Relations with Foreign States

There is no specific legislation with respect to this specific issue, but a number of statutes consist of provisions that imposes restrictions on forms of speech and expression that would have adverse effects on the friendly relationship with foreign countries such as Section 5 (B)(1) of the Cinematograph Act, 1952, Rule 6(1)(b) of eth Cable Television Network Rules, 1994 and section 8(1) (a) of the Right to Information Act,2001.

Decency Morality

Decency and morality are two subjective notions which changes from person to person, from time to time and from country to country. Even within the same country, there may be different social strata who consider one thing to be indecent or immoral which another community or a social group might feel normal.

The Supreme Court itself has observed in Chandrakant Kalyandas Kakodkar v State of Maharashtra [21] that such notions vary from country to country depending on the standard of morals of contemporary society. It is difficult to lay a general and concrete standard of decency and morality.

Obscenity is another concept that is often used in this context synonymously with indecent and immoral. The Indian Penal Code under section 292 defines obscenity as a book pamphlet, drawing, painting, representation, figure or any other object which appeals to the prurient interests or where it comprises two or more distinct items, the effect of any one of the item when taken as a whole tend to deprave and corrupt the persons who are likely to be exposed to such matter.

In Rajit D Udeshi v State of Maharashtra [22], the Supreme Court defined obscenity as offensive to modesty or decency, lewd, filthy, and repulsive.

The attitude if the Indian society towards sex and nudity in general and as a form of expression has drastically changed due to the elements of what is popularly known as the Victorian Morality where sex and nudity are considered a taboo. Courts have also discussed this matter in detail.

Court in K A Abbas v Union of India, observed that sex and obscenity are not always synonymous and that it was wrong to classify sex as essentially obscene or even indecent or immoral. Bobby Arts case too, the court made a clear distinction between nudity and obscenity. In that case, it was held by the Supreme Court that in the film, “Bandit Queen” scenes depicting frontal nudity was not to arouse prurient feelings but was aimed at the revulsion for perpetrators

Morevoer, Ranjit D Udeshi case, the Supreme Court distinguished between obscenity and pornography. It was held that while pornography denotes writings, pictures etc  intended to arouse sexual desire, obscenity may include publications not intending to do so but which have that tendency. While both offend against public decency and morals, pornography is obscenity in more aggravated form.

Even though it is extremely difficult to set a uniform standard of morality and decency or obscenity, the Supreme Court have applied a number of tests to identify if something is obscene. The Hicklin test which originated in English Courts was based on the effect of the publication on the most vulnerable members of the society whether or not they are exposed to the publication. This was applied in Rnjit D Udeshi case.

The Likely audience test is an improvement on the Hicklin test where the effect of the publication on a person who could reasonably be expected to gain access to the publication. In other words, the effect of the matter on its target audience is what is looked into in this test.

This was applied in the Samaresh Bose v Amal Mitra[23] case. Preponderating Social Purpose Test is the one which is applied when art and obscenity and mixed. In such cases, the courts will see whether the artistic, literary, or social merit of the work in question outweighs its obscene content. It was discussed in KA Abbas v Union of India.

Contempt of Court

In a democratic system, judiciary holds a very crucial position in the administration of justice and application of laws. The supreme position of the judiciary is indispensible for the smooth functioning of law and hence anything that would belittle the authority of the Courts shall be met with legal sanction on grounds of contempt of court.

The Contempt of Courts Act is the legislation enacted to impose restrictions upon actions including speech and expression that would scandalize the courts and jeopardize their position.

In Indirect Tax Practitioners Association v R K Jain [24] it was held by the Supreme Court that truth based on facts should be allowed as a valid defense against contempt proceedings. Section 2 of the Contempt of Courts Act divides contempt into civil and criminal contempt.

Civil Contempt is the willful disobedience of a court order whereas criminal contempt is the publication of any matter or doing of any act which scandalizes or tends to scandalize or lower or tend to lower the authority of any court, prejudices or interferes or tends to interfere with the due process of a judicial proceeding, interferes or tend to interfere with the administration of justice. 

Free Speech do not warrant an individual to defame another. A person knowingly makes a statements or publishes a matter to the public about another person that would tarnish the latter’s reputation shall be restricted on grounds of defamation. A defamatory matter in a permanent form such as a matter written or printed is labeled as Libel and the defamatory matter which is spoken is called slander.

Freedom of Speech and Expression is one of the most essential right that an individual by virtue of being born as a human being ought to possess in the modern society.

Free speech is indispensable for the smooth functioning of a democratic and the interference of state should be minimal and cautious so as to ensure that individuals are able to form their own opinions and also able to express them in whatever form they deem fit. It is one basic right that encapsulates several aspects, several forms of expression including that of remaining silent.

A proper balance has to be maintained between the exercise of free speech and also, the other individual rights such as privacy and integrity so that the exercise of the former would not abridge or tarnish the latter.

The  Constitution  of  India  provides the right of freedom, given in  article 19  with the view of guaranteeing individual rights that were considered vital by the framers of the  constitution . The right to freedom in  Article 19  guarantees the freedom of speech and expression, as one of its six freedoms.

Freedom of speech , of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as  freedom of expression .

No it is not. Under Article 19(2), one can find the restrictions put upon the Freedom of Speech and Expression.

[1] Citation: AIR 1950 SC 124

[2] AIR 1962 SC 305

[3] Citation: AIR 1957 SC 896

[4] All India Report 1959 SC 359

[5] Citation: AIR 1963 SC 106

[6] 6 1982 SCR (1)1184

[7] 63 (1996) DLT 90

[8] Citation: AIR 1988 SC 1642

[9] -AIR 1993 SC 171

[10] Citation: AIR 1995 Sc 1236

[11] 1966 SCR (3) 744

[12] 1996 8SCC 433

[13] (2002) 3 SCC 667

[14] (2010) 5 SCC 600

[15] 2011 (123) D.R.J.

[16] AIR 1971 SC 481

[17] (1985) 1 SCC 641

[18] Citation : AIR 1987 SC 748

[19] – AIR 1950 SC 124

[20] Citation: AIR 1960 SC 633

[21] – AIR 1970 SC 1390

[22] Citation : AIR 1965 SC 881

[23] – AIR 1986 SC987

[24] (1983) 4 SCC 125

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Gaza campus protests: what are students’ free speech rights and what can universities do?

Lecturer in Political Theory and Philosophy, Queen's University Belfast

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Students expressing solidarity with Palestinians and protesting Israel’s war in Gaza have set up encampments on campuses around the UK. Around 15 encampments have emerged in Oxford , Cambridge , Edinburgh , Warwick Manchester and others. They’ve also emerged in other countries including France and Ireland .

Broadly, students are calling for transparency over and divestment from universities’ financial links with Israeli companies (particularly those involved in the arms industry). They are demanding university leaders cut ties with Israeli universities, increase resources (including scholarships for Palestinian students and make long-term commitments relating to the rebuilding of higher education in Palestine.

The encampments follow similar action at more than 140 universities in the US. There, scenes of police arresting protesters have sparked intense debate about when (if ever) it is permissible to limit the free expression of students.

Read more: US student Gaza protests: five things that have been missed

Universities have a difficult balance to strike between protecting student speech rights and ensuring campus safety.

In the US, public universities (as “arms of government”) are prevented from interfering with free speech under the constitution’s first amendment. While this doesn’t apply in the same way to private universities, most have agreed to uphold policies that closely resemble it. These rights must be balanced against reasonable considerations about the time, place and manner of the speech, as well as civil rights laws against harassment.

The UK does not have the same free speech protections, but many university leaders have made clear that their institutions support freedom of expression . They have reminded students of their duties to ensure that protest activities remain lawful and do not risk the safety of others.

They have encouraged students to follow university policy , and be mindful of other students, staff and members of the public. This generally means that they should not obstruct their access to work or get in the way of their education.

Rishi Sunak met with 17 vice-chancellors and representatives from the Union of Jewish Students (UJS), seeking reassurance that any antisemitism arising from the protests would be swiftly dealt with. And the education secretary, Gillian Keegan, called for vice-chancellors to “show leadership” to ensure that campuses are a safe place for all students.

Are the protests legal?

Protests that take place on university campuses in the UK are considered legal exercises of the right to freedom of expression. The rights of freedom of expression and freedom of assembly are protected by the European Convention on Human Rights, which is enshrined in UK law under the Human Rights Act .

These rights are further reinforced by a 1986 UK education law , which requires universities to take “reasonably practicable” steps to protect freedom of speech on campus. This includes permitting and facilitating the right to protest.

There are notable exceptions. In England and Wales, speech that incites violence is considered unlawful, as is harassment on the basis of protected characteristics (race, religion, sexuality and so on). The law is slightly different in Scotland and Northern Ireland .

Expressed support for one of the UK government’s 79 proscribed organisations (including Hezbollah and Hamas) is also criminalised by the Terrorism Act .

When it comes to semi-permanent occupations, duties to facilitate freedom of expression will be in tension with universities’ obligations to keep students and staff safe. Sally Mapstone, the president of the vice-chancellors’ group Universities UK, said universities “may need to take action ” if encampments interfere with the ability to take exams, graduate or go about other business.

In the past, universities have ended occupations by applying for a “possession order” from the High Court. This can lead to students being removed by bailiffs, as happened in March 2023 when the University of Bristol evicted students taking part in a rent strike.

In April 2024 , Bristol Students Occupy for Palestine ended a four-week occupation of the university’s executive management building after they were served with a possession order.

Any universities that take this route would need to show that they have considered protestors’ freedom of expression and assembly rights , and that these have been outweighed by other competing obligations.

The encampments could also risk breaching the Police Crime Sentencing and Courts Act and the Public Order Act, introduced in 2022 and 2023. These controversial laws limit noisy protests and make it unlawful to cause “public nuisance”.

They also ban protests that cause serious disruption to the life of the community , including by tunnelling , locking-on and taking part in slow-walking protests . Again, any interventions (from either the university or the police) must be weighed against the freedom of expression rights of protesters.

Successful negotiations

So far, some of the protests have been successful. Management at Goldsmiths, University of London agreed to protesters’ demands, including investing in a number of scholarships for Palestinian students and reviewing the university’s investment policy. The encampment at Trinity College Dublin has ended after the university agreed to divest from “Israeli companies that have activities in the Occupied Palestinian Territory and appear on the UN blacklist in this regard”.

The University of York has also agreed to divest from weapons manufacturers. Other universities have established meetings between protesters and management, though most negotiations are still in the early stages.

Apart from upholding their legal obligations, universities should maintain open lines of dialogue with protesters. Doing so is not only essential from a safety perspective, but ensures that all are able to exercise their rights effectively. So far, most universities have been clear about their commitment to free expression, acknowledging lawful protest as a fundamental component of university life.

The free exchange of ideas will often make some people feel uncomfortable . But speech which harasses or threatens others is not only unlawful, it prevents them from taking part in university life as equals. Universities must also offer accessible channels of complaint for students and staff who have experienced abuse from others on campus.

• UK higher education
• Student protests
• UK universities
• Campus free speech
• encampments
• Gaza Protests

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Opinion Clashes on campuses keep missing the key to successful protest

As campus protests continue, we need respect for differing perspectives.

Ro Khanna, a Democrat, represents California’s 17th Congressional District in the U.S. House. This column is adapted from his speech accepting the “Profile in Courage” award from the Arab American Civil Rights League in Dearborn, Mich.

How can we have a conversation in America that condemns the horrific Oct. 7 Hamas attack and kidnappings, reckons with what has transpired since, and respects the stories and struggles, the trauma and tears, of both Arab Americans and Jewish Americans?

At a time of campus protests that echo what America saw during the Vietnam War, we must begin with the lessons of Kent State and Jackson State. Our nation must always stand for free speech, whether that speech is critical of Israel, of Hamas or of America. Criticism of the policies of a government in power is neither a rejection of patriotism nor an expression of bigotry. An open society like ours is designed for sharp disagreement and controversy. But the defense of dissent does not absolve us of the moral responsibility to call out protests when they devolve into toxic and vile threats against Jews or any other ethnic group. Prejudice is not a form of discussion.

University leaders can show moral clarity by condemning hate, harassment and intimidation while recognizing the gravity and repercussions of calling in armed police — or worse, the National Guard — to remove protesters on college campuses. We have seen troubling images of students and professors thrown to the ground and handcuffed. There has to be some understanding for young students who feel helpless to do anything about the deaths in Gaza and so decide, in exasperation, to camp on the quads — provided they do not advocate violence, vandalize buildings, or make threats based on religious or national identity. These students see the lack of representation in Congress and on university boards, where few Arab or Muslim Americans sit; they see the lopsided votes, and so protest is their cry to be heard, their plea for the bombing to stop and the occupation to end. There is nothing immoral or undemocratic about this.

Administrators must also be wary of casting a wide net and entangling those students who are genuinely committed to nonviolence in the universities’ disciplinary bureaucracy, with suspensions and expulsions. These students are often first-generation Americans or children of immigrants, whose parents may come from nations that have borne the injustices of the global order, and they are speaking out for the dignity of the disenfranchised. Many are from working families that have made hard sacrifices and have incurred large debt to get an education. Young people deserve some space to question conventional ideology and develop their thinking, so long as their exploration is peaceful, without indelibly staining their future.

At the same time, freedom of expression is not absolute. We can applaud those with the courage to speak and still demand that they be respectful of fellow students who simply want classes to continue. There must be a way to allow for freedom of speech in spaces where nondisruptive protest should be given leeway (such as on quads or lawns) or even tolerated (such as in administration offices) without shutting down classrooms or blocking access to them. Similarly, there has to be a way to allow speech without turning a blind eye to ugly intimidation, such as spitting or cursing at students who wear yarmulkes (or hijabs), or who wave Palestinian (or Israeli) flags.

Universities must treat every single community member as an equal in dialogue and the pursuit of truth, and there must be consequences for anyone who violates this basic moral standard. Students should be able to walk freely on campus expressing their religious and cultural identity without being harassed or targeted.

More pointedly, just because certain speech might be protected by the First Amendment does not mean that the speech is constructive or thoughtful. Yelling “Hamas sympathizer” or “Iranian proxy” at students making the case against occupation is not only slanderous; it perpetuates the worst tropes of Islamophobia and anti-Arab stereotypes. Conversely, chanting “from the river to the sea,” which Jewish students hear as encouraging violence against them, or scapegoating everyone on campus who served in the Israel Defense Forces, is wrong and chilling, given the history of antisemitism at European and American universities.

The great leaders of civil disobedience such as Mohandas K. Gandhi, the Rev. Martin Luther King Jr. and Nelson Mandela understood this. They did not engage in schoolyard taunts that dehumanized their opponents. Instead, they used language that opened their opponents’ minds and hearts to bring about change. They would call off large protests at the hint of violent threats, recognizing that even a few provocateurs could undercut their moral authority. They did not minimize ugly rhetoric by a handful of protestors as unrepresentative or as opposition plants but insisted on the highest standards by speaking out against hate on their own side first, and doing so loudly and repeatedly.

These movements can be an inspiration for us all. Our standard for discourse cannot be merely toleration of the other. More than toleration, what is needed is respect for differing narratives. Not approval, but respect.

This is what I understand from Gandhi’s teaching of satyagraha , which has influenced me because of my grandfather, Amarnath Vidyalankar, who spent four years in jail for participating in Gandhi’s independence movement. Satyagraha is the pursuit of truth — and satyagrahis approach their adversary with no ill will, but with respect and even love. Showing respect means understanding where someone is coming from, listening to their history and viewpoints, and making arguments in good faith to seek truth and justice.

This approach takes time and patience. It often fails. It stands in stark contrast to the attention-seeking that is the modern currency of recognition. But it still represents the best chance, perhaps the only chance, of moving the world in a more just direction.

Consider this: America has become, in Frederick Douglass’s words, a composite nation . For this reason, is there not potential for us to be a balanced peacemaker, because so many of the world’s painful stories of subjugation and persecution are finding voice in our body politic? After all, we have members of Congress with family in Palestine working beside and talking with members of Congress who lost family in the Holocaust. A whole new generation, with differing historical and cultural perspectives, is on the cusp of serving and leading — together.

That is a beautiful expression of American democracy, and one that might well enable us to build an America that can lead the way to justice and peace for all people.

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For immediate release | May 15, 2024

ALA’s Office for Intellectual Freedom to benefit from new book of essays

CHICAGO — A new book of essays, “Why Books Still Matter,” inspired by the late First Amendment champion Joyce Meskis, has been released this month, with proceeds going to the American Library Association’s Office for Intellectual Freedom (OIF).

Meskis, who owned the celebrated independent bookstore Tattered Cover in Denver, was a fierce opponent of book banning, and 16 luminaries in book-related fields and the U.S. Senate have contributed to the book, which is edited by Karl Weber and published by Rivertowns Books .

“The topics of the essays in ‘Why Books Still Matter’ are some of the most important in our country right now, from freedom of speech and censorship to representation so people can see themselves reflected in books and to build empathy,” said ALA President Emily Drabinski. “We are deeply thankful that the proceeds of the book will be donated to ALA’s Office for Intellectual Freedom to champion libraries in this current landscape of increasing book challenges throughout the country.”

The ALA saw a record 4,240 unique book titles targeted for censorship in 2023, a 65 percent increase from 2022, when 2,571 titles were challenged. OIF tracked 1,247 demands to censor library books, materials and resources in 2023. For additional information about book challenges and how to fight them, visit the Unite Against Book Bans website.

Here are a few of the contributing essayists to the book:

• U.S. Sen. John Hickenlooper of Colorado lauds the mission that Meskis embraced: “The more books we can put in people’s hands, the better the world will be.”
• Nick Higgins and Amy Mikel of the Brooklyn Public Library discuss an award-winning program to make banned books available to young people in communities across the country.
• Civil liberties attorney Steve Zansberg describes a new way to think about the right to free expression and its role in a democratic society.

About the American Library Association

The American Library Association (ALA) is the foremost national organization providing resources to inspire library and information professionals to transform their communities through essential programs and services. For more than 140 years, the ALA has been the trusted voice for academic, public, school, government, and special libraries, advocating for the profession and the library's role in enhancing learning and ensuring access to information for all. For more information, visit www.ala.org .

Jean Hodges

American Library Association

Communications, Marketing & Media Relations Office

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