conclusion on freedom of speech and expression

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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.

• Alexander, Larry [Lawrence], 1995, “Free Speech and Speaker’s Intent”, Constitutional Commentary , 12(1): 21–28.
• –––, 2005, Is There a Right of Freedom of Expression? , (Cambridge Studies in Philosophy and Law), Cambridge/New York: Cambridge University Press.
• Alexander, Lawrence and Paul Horton, 1983, “The Impossibility of a Free Speech Principle Review Essay”, Northwestern University Law Review , 78(5): 1319–1358.
• Alexy, Robert, 2003, “Constitutional Rights, Balancing, and Rationality”, Ratio Juris , 16(2): 131–140. doi:10.1111/1467-9337.00228
• Amdur, Robert, 1980, “Scanlon on Freedom of Expression”, Philosophy & Public Affairs , 9(3): 287–300.
• Arneson, Richard, 2009, “Democracy is Not Intrinsically Just”, in Justice and Democracy , Keith Dowding, Robert E. Goodin, and Carole Pateman (eds.), Cambridge: Cambridge University Press, 40–58.
• Baker, C. Edwin, 1989, Human Liberty and Freedom of Speech , New York: Oxford University Press.
• –––, 2009, “Autonomy and Hate Speech”, in Hare and Weinstein 2009: 139–157 (ch. 8). doi:10.1093/acprof:oso/9780199548781.003.0009
• Balkin, Jack M., 2004, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society”, New York University Law Review , 79(1): 1–55.
• –––, 2009, “The Future of Free Expression in a Digital Age Free Speech and Press in the Digital Age”, Pepperdine Law Review , 36(2): 427–444.
• –––, 2018, “Free Speech Is a Triangle Essays”, Columbia Law Review , 118(7): 2011–2056.
• –––, 2021, “How to Regulate (and Not Regulate) Social Media”, Journal of Free Speech Law , 1(1): 71–96. [ Balkin 2021 available online (pdf) ]
• Barendt, Eric M., 2005, Freedom of Speech , second edition, Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199225811.001.0001
• Barnes, Michael Randall, 2022, “Online Extremism, AI, and (Human) Content Moderation”, Feminist Philosophy Quarterly , 8(3/4): article 6. [ Barnes 2022 available online ]
• Beauharnais v. Illinois 343 U.S. 250 (1952).
• Billingham, Paul and Tom Parr, 2020, “Enforcing Social Norms: The Morality of Public Shaming”, European Journal of Philosophy , 28(4): 997–1016. doi:10.1111/ejop.12543
• Blasi, Vincent, 1977, “The Checking Value in First Amendment Theory”, American Bar Foundation Research Journal 3: 521–649.
• –––, 2004, “Holmes and the Marketplace of Ideas”, The Supreme Court Review , 2004: 1–46.
• Brettschneider, Corey Lang, 2012, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality , Princeton, NJ: Princeton University Press.
• Brietzke, Paul H., 1997, “How and Why the Marketplace of Ideas Fails”, Valparaiso University Law Review , 31(3): 951–970.
• Bollinger, Lee C., 1986, The Tolerant Society: Free Speech and Extremist Speech in America , New York: Oxford University Press.
• Bonotti, Matteo and Jonathan Seglow, 2022, “Freedom of Speech: A Relational Defence”, Philosophy & Social Criticism , 48(4): 515–529.
• Brandenburg v. Ohio 395 U.S. 444 (1969).
• Brink, David O., 2001, “Millian Principles, Freedom of Expression, and Hate Speech”, Legal Theory , 7(2): 119–157. doi:10.1017/S1352325201072019
• Brison, Susan J., 1998, “The Autonomy Defense of Free Speech”, Ethics , 108(2): 312–339. doi:10.1086/233807
• Brison, Susan J. and Katharine Gelber (eds), 2019, Free Speech in the Digital Age , Oxford: Oxford University Press. doi:10.1093/oso/9780190883591.001.0001
• Brown, Étienne, 2023, “Free Speech and the Legal Prohibition of Fake News”, Social Theory and Practice , 49(1): 29–55. doi:10.5840/soctheorpract202333179
• Buchanan, Allen E., 2013, The Heart of Human Rights , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199325382.001.0001
• Cepollaro, Bianca, Maxime Lepoutre, and Robert Mark Simpson, 2023, “Counterspeech”, Philosophy Compass , 18(1): e12890. doi:10.1111/phc3.12890
• Chaplinsky v. New Hampshire 315 U.S. 568 (1942).
• Cohen, Joshua, 1993, “Freedom of Expression”, Philosophy & Public Affairs , 22(3): 207–263.
• –––, 1997, “Deliberation and Democratic Legitimacy”, in Deliberative Democracy: Essays on Reason and Politics , James Bohman and William Rehg (eds), Cambridge, MA: MIT Press, 67–92.
• Dworkin, Ronald, 1981, “Is There a Right to Pornography?”, Oxford Journal of Legal Studies , 1(2): 177–212. doi:10.1093/ojls/1.2.177
• –––, 1996, Freedom’s Law: The Moral Reading of the American Constitution , Cambridge, MA: Harvard University Press.
• –––, 2006, “A New Map of Censorship”, Index on Censorship , 35(1): 130–133. doi:10.1080/03064220500532412
• –––, 2009, “Forward.” In Extreme Speech and Democracy , ed. J. Weinstein and I. Hare, pp. v-ix. Oxford: Oxford University Press.
• –––, 2013, Religion without God , Cambridge, MA: Harvard University Press.
• Douek, Evelyn, 2021, “Governing Online Speech: From ‘Posts-as-Trumps’ to Proportionality and Probability”, Columbia Law Review , 121(3): 759–834.
• –––, 2022a, “Content Moderation as Systems Thinking”, Harvard Law Review , 136(2): 526–607.
• –––, 2022b, “The Siren Call of Content Moderation Formalism”, in Social Media, Freedom of Speech, and the Future of Our Democracy , Lee C. Bollinger and Geoffrey R. Stone (eds.), New York: Oxford University Press, 139–156 (ch. 9). doi:10.1093/oso/9780197621080.003.0009
• Ely, John Hart, 1975, “Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis”, Harvard Law Review , 88: 1482–1508.
• Emerson, Thomas I., 1970, The System of Freedom of Expression , New York: Random House.
• Epstein, Richard A., 1992, “Property, Speech, and the Politics of Distrust”, University of Chicago Law Review , 59(1): 41–90.
• Estlund, David, 2008, Democratic Authority: A Philosophical Framework , Princeton: Princeton University Press.
• Feinberg, Joel, 1984, The Moral Limits of the Criminal Law Volume 1: Harm to Others , New York: Oxford University Press. doi:10.1093/0195046641.001.0001
• –––, 1985, The Moral Limits of the Criminal Law: Volume 2: Offense to Others , New York: Oxford University Press. doi:10.1093/0195052153.001.0001
• Fish, Stanley Eugene, 1994, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too , New York: Oxford University Press.
• Fox, Gregory H. and Georg Nolte, 1995, “Intolerant Democracies”, Harvard International Law Journal , 36(1): 1–70.
• Gelber, Katharine, 2010, “Freedom of Political Speech, Hate Speech and the Argument from Democracy: The Transformative Contribution of Capabilities Theory”, Contemporary Political Theory , 9(3): 304–324. doi:10.1057/cpt.2009.8
• Gilmore, Jonathan, 2011, “Expression as Realization: Speakers’ Interests in Freedom of Speech”, Law and Philosophy , 30(5): 517–539. doi:10.1007/s10982-011-9096-z
• Gordon, Jill, 1997, “John Stuart Mill and the ‘Marketplace of Ideas’:”, Social Theory and Practice , 23(2): 235–249. doi:10.5840/soctheorpract199723210
• Greenawalt, Kent, 1989, Speech, Crime, and the Uses of Language , New York: Oxford University Press.
• Greene, Amanda R. and Robert Mark Simpson, 2017, “Tolerating Hate in the Name of Democracy”, The Modern Law Review , 80(4): 746–765. doi:10.1111/1468-2230.12283
• Greene, Jamal, 2021, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart , Boston: Houghton Mifflin Harcourt.
• Gutmann, Amy and Dennis Thompson, 2008, Why Deliberative Democracy? Princeton: Princeton University Press.
• Habermas, Jürgen, 1992 [1996], Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats , Frankfurt am Main: Suhrkamp. Translated as Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy , William Rehg (trans.), (Studies in Contemporary German Social Thought), Cambridge, MA: MIT Press, 1996.
• Hare, Ivan and James Weinstein (eds), 2009, Extreme Speech and Democracy , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199548781.001.0001
• Hart, H. L. A., 1955, “Are There Any Natural Rights?”, The Philosophical Review , 64(2): 175–191. doi:10.2307/2182586
• Heinze, Eric, 2016, Hate Speech and Democratic Citizenship , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780198759027.001.0001
• Heyman, Steven J., 2009, “Hate Speech, Public Discourse, and the First Amendment”, in Hare and Weinstein 2009: 158–181 (ch. 9). doi:10.1093/acprof:oso/9780199548781.003.0010
• Hohfeld, Wesley, 1917, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26(8): 710–770.
• Holder v. Humanitarian Law Project 561 U.S. 1 (2010).
• Hornsby, Jennifer, 1995, “Disempowered Speech”, Philosophical Topics , 23(2): 127–147. doi:10.5840/philtopics199523211
• Howard, Jeffrey W., 2019a, “Dangerous Speech”, Philosophy & Public Affairs , 47(2): 208–254. doi:10.1111/papa.12145
• –––, 2019b, “Free Speech and Hate Speech”, Annual Review of Political Science , 22: 93–109. doi:10.1146/annurev-polisci-051517-012343
• –––, 2021, “Terror, Hate and the Demands of Counter-Speech”, British Journal of Political Science , 51(3): 924–939. doi:10.1017/S000712341900053X
• –––, forthcoming a, “The Ethics of Social Media: Why Content Moderation is a Moral Duty”, Journal of Practical Ethics .
• Howard, Jeffrey W. and Robert Simpson, forthcoming b, “Freedom of Speech”, in Issues in Political Theory , fifth edition, Catriona McKinnon, Patrick Tomlin, and Robert Jubb (eds), Oxford: Oxford University Press.
• Husak, Douglas N., 1985, “What Is so Special about [Free] Speech?”, Law and Philosophy , 4(1): 1–15. doi:10.1007/BF00208258
• Jacobson, Daniel, 2000, “Mill on Liberty, Speech, and the Free Society”, Philosophy & Public Affairs , 29(3): 276–309. doi:10.1111/j.1088-4963.2000.00276.x
• Kendrick, Leslie, 2013, “Speech, Intent, and the Chilling Effect”, William & Mary Law Review , 54(5): 1633–1692.
• –––, 2017, “Free Speech as a Special Right”, Philosophy & Public Affairs , 45(2): 87–117. doi:10.1111/papa.12087
• Klonick, Kate, 2018, “The New Governors”, Harvard Law Review 131: 1589–1670.
• Knight First Amendment Institute v. Trump 928 F.3d 226 (2019).
• Kramer, Matthew H., 2021, Freedom of Expression as Self-Restraint , Oxford: Oxford University Press.
• Lakier, Genevieve, 2015, “The Invention of Low-Value Speech”, Harvard Law Review , 128(8): 2166–2233.
• Landemore, Hélène, 2013, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many , Princeton/Oxford: Princeton University Press.
• Langton, Rae, 1993, “Speech Acts and Unspeakable Acts”, Philosophy & Public Affairs , 22(4): 293–330.
• –––, 2018, “The Authority of Hate Speech”, in Oxford Studies in Philosophy of Law (Volume 3), John Gardner, Leslie Green, and Brian Leiter (eds.), Oxford: Oxford University Press: ch. 4. doi:10.1093/oso/9780198828174.003.0004
• Lazar, Seth, forthcoming, “Legitimacy, Authority, and the Public Value of Explanations”, in Oxford Studies in Political Philosophy (Volume 10), Steven Wall (ed.), Oxford: Oxford University Press.
• –––, forthcoming, Connected by Code: Algorithmic Intermediaries and Political Philosophy, Oxford: Oxford University Press.
• Leiter, Brian, 2016, “The Case against Free Speech”, Sydney Law Review , 38(4): 407–439.
• Lepoutre, Maxime, 2021, Democratic Speech in Divided Times , Oxford/New York: Oxford University Press.
• MacKinnon, Catharine A., 1984 [1987], “Not a Moral Issue”, Yale Law & Policy Review , 2(2): 321–345. Reprinted in her Feminism Unmodified: Discourses on Life and Law , Cambridge, MA: Harvard University Press, 1987, 146–162 (ch. 13).
• Macklem, Timothy, 2006, Independence of Mind , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199535446.001.0001
• Maitra, Ishani, 2009, “Silencing Speech”, Canadian Journal of Philosophy , 39(2): 309–338. doi:10.1353/cjp.0.0050
• Maitra, Ishani and Mary Kate McGowan, 2007, “The Limits of Free Speech: Pornography and the Question of Coverage”, Legal Theory , 13(1): 41–68. doi:10.1017/S1352325207070024
• Matsuda, Mari J., 1989, “Public Response to Racist Speech: Considering the Victim’s Story Legal Storytelling”, Michigan Law Review , 87(8): 2320–2381.
• Matsuda, Mari J., Charles R. Lawrence, Richard Delgado, and Kimberlè Williams Crenshaw, 1993, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (New Perspectives on Law, Culture, and Society), Boulder, CO: Westview Press. Reprinted 2018, Abingdon: Routledge. doi:10.4324/9780429502941
• McGowan, Mary Kate, 2003, “Conversational Exercitives and the Force of Pornography”, Philosophy & Public Affairs , 31(2): 155–189. doi:10.1111/j.1088-4963.2003.00155.x
• –––, 2019, Just Words: On Speech and Hidden Harm , Oxford: Oxford University Press. doi:10.1093/oso/9780198829706.001.0001
• McMahan, Jeff, 2009, Killing in War , (Uehiro Series in Practical Ethics), Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199548668.001.0001
• Milton, John, 1644, “Areopagitica”, London. [ Milton 1644 available online ]
• Meiklejohn, Alexander, 1948, Free Speech and Its Relation to Self-Government , New York: Harper.
• –––, 1960, Political Freedom: The Constitutional Powers of the People , New York: Harper.
• Mill, John Stuart, 1859, On Liberty , London: John W. Parker and Son. [ Mill 1859 available online ]
• Nagel, Thomas, 2002, Concealment and Exposure , New York: Oxford University Press.
• Pallikkathayil, Japa, 2020, “Free Speech and the Embodied Self”, in Oxford Studies in Political Philosophy (Volume 6), David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford: Oxford University Press, 61–84 (ch. 3). doi:10.1093/oso/9780198852636.003.0003
• Parekh, Bhikhu, 2012, “Is There a Case for Banning Hate Speech?”, in The Content and Context of Hate Speech: Rethinking Regulation and Responses , Michael Herz and Peter Molnar (eds.), Cambridge/New York: Cambridge University Press, 37–56. doi:10.1017/CBO9781139042871.006
• Post, Robert C., 1991, “Racist Speech, Democracy, and the First Amendment Free Speech and Religious, Racial, and Sexual Harassment”, William and Mary Law Review , 32(2): 267–328.
• –––, 2000, “Reconciling Theory and Doctrine in First Amendment Jurisprudence Symposium of the Law in the Twentieth Century”, California Law Review , 88(6): 2353–2374.
• –––, 2009, “Hate Speech”, in Hare and Weinstein 2009: 123–138 (ch. 7). doi:10.1093/acprof:oso/9780199548781.003.0008
• –––, 2011, “Participatory Democracy as a Theory of Free Speech: A Reply Replies”, Virginia Law Review , 97(3): 617–632.
• Quong, Jonathan, 2011, Liberalism without Perfection , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199594870.001.0001
• R v. Oakes , 1 SCR 103 (1986).
• Rawls, John, 2005, Political Liberalism , expanded edition, (Columbia Classics in Philosophy), New York: Columbia University Press.
• Raz, Joseph, 1991 [1994], “Free Expression and Personal Identification”, Oxford Journal of Legal Studies , 11(3): 303–324. Collected in his Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press, 146–169 (ch. 7).
• Redish, Martin H., 1982, “Value of Free Speech”, University of Pennsylvania Law Review , 130(3): 591–645.
• Rubenfeld, Jed, 2001, “The First Amendment’s Purpose”, Stanford Law Review , 53(4): 767–832.
• Scanlon, Thomas, 1972, “A Theory of Freedom of Expression”, Philosophy & Public Affairs , 1(2): 204–226.
• –––, 1978, “Freedom of Expression and Categories of Expression ”, University of Pittsburgh Law Review , 40(4): 519–550.
• –––, 2008, “Rights and Interests”, in Arguments for a Better World: Essays in Honor of Amartya Sen , Kaushik Basu and Ravi Kanbur (eds), Oxford: Oxford University Press, 68–79 (ch. 5). doi:10.1093/acprof:oso/9780199239115.003.0006
• –––, 2013, “Reply to Wenar”, Journal of Moral Philosophy 10: 400–406
• Schauer, Frederick, 1978, “Fear, Risk and the First Amendment: Unraveling the Chilling Effect”, Boston University Law Review , 58(5): 685–732.
• –––, 1982, Free Speech: A Philosophical Enquiry , Cambridge/New York: Cambridge University Press.
• –––, 1985, “Slippery Slopes”, Harvard Law Review , 99(2): 361–383.
• –––, 1993, “The Phenomenology of Speech and Harm”, Ethics , 103(4): 635–653. doi:10.1086/293546
• –––, 2004, “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience”, Harvard Law Review , 117(6): 1765–1809.
• –––, 2009, “Is It Better to Be Safe than Sorry: Free Speech and the Precautionary Principle Free Speech in an Era of Terrorism”, Pepperdine Law Review , 36(2): 301–316.
• –––, 2010, “Facts and the First Amendment”, UCLA Law Review , 57(4): 897–920.
• –––, 2011a, “On the Relation between Chapters One and Two of John Stuart Mill’s On Liberty ”, Capital University Law Review , 39(3): 571–592.
• –––, 2011b, “Harm(s) and the First Amendment”, The Supreme Court Review , 2011: 81–111. doi:10.1086/665583
• –––, 2015, “Free Speech on Tuesdays”, Law and Philosophy , 34(2): 119–140. doi:10.1007/s10982-014-9220-y
• Shiffrin, Seana Valentine, 2014, Speech Matters: On Lying, Morality, and the Law (Carl G. Hempel Lecture Series), Princeton, NJ: Princeton University Press.
• Simpson, Robert Mark, 2016, “Defining ‘Speech’: Subtraction, Addition, and Division”, Canadian Journal of Law & Jurisprudence , 29(2): 457–494. doi:10.1017/cjlj.2016.20
• –––, 2021, “‘Lost, Enfeebled, and Deprived of Its Vital Effect’: Mill’s Exaggerated View of the Relation Between Conflict and Vitality”, Aristotelian Society Supplementary Volume , 95: 97–114. doi:10.1093/arisup/akab006
• Southeastern Promotions Ltd., v. Conrad , 420 U.S. 546 (1975).
• Sparrow, Robert and Robert E. Goodin, 2001, “The Competition of Ideas: Market or Garden?”, Critical Review of International Social and Political Philosophy , 4(2): 45–58. doi:10.1080/13698230108403349
• Stone, Adrienne, 2017, “Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech”, Constitutional Commentary , 32(3): 687–696.
• Stone, Geoffrey R., 1983, “Content Regulation and the First Amendment”, William and Mary Law Review , 25(2): 189–252.
• –––, 1987, “Content-Neutral Restrictions”, University of Chicago Law Review , 54(1): 46–118.
• –––, 2004, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism , New York: W.W. Norton & Company.
• Strauss, David A., 1991, “Persuasion, Autonomy, and Freedom of Expression”, Columbia Law Review , 91(2): 334–371.
• Strossen, Nadine, 2018, Hate: Why We Should Resist It With Free Speech, Not Censorship , New York: Oxford University Press
• Sunstein, Cass R., 1986, “Pornography and the First Amendment”, Duke Law Journal , 1986(4): 589–627.
• –––, 1989, “Low Value Speech Revisited Commentaries”, Northwestern University Law Review , 83(3): 555–561.
• –––, 1993, Democracy and the Problem of Free Speech , New York: The Free Press.
• –––, 2017, #Republic: Divided Democracy in the Age of Social Media , Princeton, NJ: Princeton University Press.
• Tadros, Victor, 2012, “Duty and Liability”, Utilitas , 24(2): 259–277.
• Turner, Piers Norris, 2014, “‘Harm’ and Mill’s Harm Principle”, Ethics , 124(2): 299–326. doi:10.1086/673436
• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

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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 .]

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

Acknowledgments

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

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

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Library of Congress Catalog Data: ISSN 1095-5054

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
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• Summary Modules on Digital Rights and Freedom of Expression Online in sub-Saharan Africa

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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Arguments for freedom: the many reasons why free speech is essential.

• David Hudson

“The matrix, the indispensable condition, of nearly every other freedom”— that’s how Justice Benjamin Cardozo referred to freedom of speech. 

This eminent Justice is far from alone in his assessment of the lofty perch that free speech holds in the United States of America. Others have called it our blueprint for personal liberty and the cornerstone of a free society. Without freedom of speech, individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint, or express their individuality and autonomy. 

The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” This freedom represents the essence of personal freedom and individual liberty. It remains vitally important, because freedom of speech is inextricably intertwined with freedom of thought. 

Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance.

“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end,” warned Justice Anthony Kennedy in Ashcroft v. Free Speech Coalition (2002). “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

There are numerous reasons why the First Amendment has a preferred position in our pantheon of constitutional values.  Here are six.

Self-governance and a check against governmental abuse

Free speech theorists and scholars have advanced a number of reasons why freedom of speech is important. Philosopher Alexander Meiklejohn famously offered that freedom of speech is essential for individuals to freely engage in debate so that they can make informed choices about self-government. Justice Louis Brandeis expressed this sentiment in his concurring opinion in  Whitney v. California (1927): “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

In other words, freedom of speech is important for the proper functioning of a constitutional democracy. Meiklejohn advocated these ideas in his seminal 1948 work, “ Free Speech and Its Relation to Self-Government .” Closely related to this is the idea that freedom of speech serves as a check against abuse by government officials. Professor Vincent Blasi referred to this as “the checking value” of free speech. 

Liberty and self-fulfillment

The self-governance rationale is only one of many reasons why freedom of speech is considered so important. Another reason is that freedom of speech is key to individual fulfillment. Some refer to this as the “liberty theory” of the First Amendment.

Free-speech theorist C. Edwin Baker writes that “speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Justice Thurgood Marshall eloquently advanced the individual fulfillment theory of freedom of speech in his concurring opinion in the prisoner rights case  Procunier v. Martinez (1974) when he wrote: “The First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”

The search for truth and the ‘marketplace of ideas’ metaphor

Still another reason for elevating freedom of speech to a prominent place in our constitutional values is that it ensures a search for truth. 

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Justice Oliver Wendell Holmes expressed this idea in his “Great Dissent” in  Abrams v. United States (1919) when he wrote that “the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This language from Holmes led to one of the most pervasive metaphors in First Amendment jurisprudence—that of the “marketplace of ideas.” 

This concept did not originate with Holmes, as John Milton in the 17th century and John Stuart Mill in the 19th century advanced the idea that speech is essential in the search for truth in their respective works, “Areopagitica” (1644) and “On Liberty” (1859). Milton famously wrote: “Let [Truth] and Falsehood grapple, whoever knew Truth put to the worse, in a free and open encounter?” For his part, Mill warned of the “peculiar evil of silencing the expression of an opinion” explaining that “[i]f the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” 

Informational theory

The marketplace metaphor is helpful but incomplete. Critics point out that over the course of history, truth may not always prevail over false ideas. For example, Mill warned that truth sometimes doesn’t triumph over “persecution.” Furthermore, more powerful individuals may have greater access to the marketplace and devalue the contributions of others. Another critique comes from those who advocate the informational theory of free speech. 

Coronavirus and the failure of the 'Marketplace of Ideas'

“If finding objective truth were the only value of freedom of expression, there would be little value to studying history,”  explains Greg Lukianoff of FIRE . “ Most of human thought in history has been mistaken about its assumptions and beliefs about the world and each other; nevertheless, understanding things like superstitions, folk medicine, and apocryphal family histories has significance and value.” 

Under this theory, there is great value in learning and appreciating what people believe and how they process information. Lukianoff calls the metaphor for the informational theory of free speech “the lab in the looking glass.” The ultimate goal is “to know as much about us and our world as we can,” because it is vitally “important to know what people really believe, especially when the belief is perplexing or troubling.”

Safety valve theory

Another reason why freedom of speech is important relates to what has been termed the “safety valve” theory. This perspective advances the idea that it is good to allow individuals to express themselves fully and blow off steam.

If individuals are deprived of the ability to express themselves, they may undertake violent means as a way to draw attention to their causes or protests. Justice Brandeis advanced the safety valve theory of free speech in his concurring opinion in Whitney v. California (1927) when he wrote:

Those who won our independence believed . . . that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.

Tolerance theory

Free speech has also been construed to promote the virtue of tolerance: If we tolerate a wide range of speech and ideas, this will promote greater acceptance, self-restraint, and a diversity of ideas. 

Lee Bollinger advanced this theory in his 1986 work “The Tolerant Society.” This theory helps explain why we should tolerate even extremist speech. As Justice Holmes wrote in his dissent in  United States v. Schwimmer (1929), freedom of speech means “freedom for the thought that we hate.” This means that we often must tolerate extremist speech. As Chief Justice John G. Roberts, Jr. wrote in  Snyder v. Phelps (2011), we don’t punish the extremist speaker; instead “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Freedom of speech holds a special place in American law and society for many good reasons.

As Rodney Smolla writes in “Free Speech in an Open Society,” “[t]here is no logical reason . . . why the preferred position of freedom of speech might not be buttressed by multiple rationales.” Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance; it leads to a search for truth; it helps people express their individuality; and it promotes a tolerant society open to different viewpoints. 

In sum, it captures the essence of a free and open society.

• Free 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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Justifying Limitations on the Freedom of Expression

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

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

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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’.

Books, Chapters, and Articles

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

Google Scholar  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mill JS (1859) On Liberty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Accepted : 26 October 2020

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

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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

Published by admin on january 27, 2024 january 27, 2024.

This article is written by Sudhanshi Mehrotra of LL.B of 3 rd Year of Panjab University, Chandigarh

Table of Contents

This Article delves into the intricate landscape of freedom of speech and expression, examining it’s significance, limitations and evolving dynamics in today’s society. As a fundamental human right, freedom of speech plays a pivotal role in shaping democratic societies, fostering open discourse, fueling social progress. However, this freedom is not without challenges, as the boundaries between free expression and potential harm or offense continue to be debated. Through an analysis of historical contexts legal frameworks, and contemporary issues, this article aims to provide a comprehensive understanding of the complexities surrounding freedom of speech.

Freedom of Speech, Expression, Article 19, Indian Constitution, Article 19(1), Object Safeguards, Constitution of India, Social Media, Hate Speech, Art, Union of India.

Introduction

We have certain basic rights as citizens of India. Fundamental rights are enshrined in the Indian constitution under Part III. These basic rights are fundamental rights that we get right from birth. No single person or state may take away the same from us. In particular, there are six fundamental rights: the right to equality (Articles 14-18), the right to freedom (Articles 19-22), the right against exploitation (Articles 23 and 24), the right to freedom of religion (Articles 25-28), educational and cultural rights (Articles 29 and 30) and the right to constitutional remedies (Article 32).

We will just take a closer look at Article 19, which deals with six fundamental freedoms. Article 19 is the most significant and important article embodying the ‘basic freedoms’ Article 19(1) of the Constitution, subject to the power of the State to enforce restrictions on the exercise of certain rights, grants those constitutional rights. Thus, the object of the Article was to protect these rights from State interference other than in the lawful exercise of its power to regulate private rights in the public interest.

Meaning of Freedom of Speech and Expression

Freedom of speech and expression has been described as the mother of all liberties .Preamble of the Constitution of India resolves to secure for the citizen of India, liberty of Thoughts, expression and belief. Article 19 (1) of the Indian Constitution says that All citizens Shall have the right

• To freedom of speech and expression;
• To assemble peaceably and without arms;
• To form associations or unions;
• To move freely throughout the territory of India;
• To reside and settle in any part of the territory of India;
• To practice any profession, or to carry on any occupation, trade or business

Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to Freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution, where we solemn to secure to all its citizen, liberty of thought and expression. The Right of freedom of Speech and Expression implies that every citizen has the rights to express His views, opinions, belief, and convictions freely by mouth, writing, printing or through any Other methods. The exercise of this right is, however, subject to reasonable restrictions for Certain purposes being imposed under Article 19(2) of the Constitution of India.

The Grounds on Which This Freedom Could Be Restricted Clause (2) of Article 19 of the Indian Constitution imposes certain restrictions on free speech

Under following heads:

• Security of the State,
• Friendly relations with foreign States
• Public order,
• Decency and morality,

Object of Freedom of speech and expression

Freedom of speech not only allows people to communicate their feelings, ideas, and opinions to others, rather it serves a broader purpose1 as well. These purposes can be classified into Four:

• It help individuals in self- realization.
• Is help in discovery of truth.
• It help in the decision-making process;
• It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

How is Freedom of Speech important?

In a democracy like India, the concept of freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a very important role in the formation and the showcasing of the public opinion on social, economic & political matters throughout the country. It ensures within its scope, the freedom related to propagation and interchangement of ideas, dissemination of information which would, later on, help the formation of one’s opinion along with their viewpoint on certain issues and give rise to debates on matters which involve the public. So long as the expression is confined to nationalism, patriotism & love for our nation, the use of National flag by the way of expression of those sentiments would be a Fundamental Right.

The Independent judiciary of India has held and stated it’s an opinion that the right to receive any information is another part of the right to freedom of speech and expression and the right to communicate and receive any kind of information without any sort of 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.

A print medium is a powerful tool for broadcasting any kind of information to any citizen of the nation. Thus, access to printed material is very crucial for the satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the Constitution. If any failure is found on the part of the State to make legislative provision for enabling access to people having print impairment of material in alternative accessible formats would constitute a deprivation of their right to freedom of speech and expression and such an inaction on the part of the State shall fall in the wrong place of the Constitution. It is an obligation on the part of the State to make sure that sufficient provisions are made in the law which enables people with a 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 as it is already included in the freedom of expression, which is given to all the citizens of the nation.

Constitutional Safeguards:

In contemporary legal systems, freedom of speech and expression is typically codified in constitutional provisions. These provisions vary across jurisdictions, but they share a common commitment to protecting the right to articulate ideas without fear of censorship or reprisal. For instance, the First Amendment of the United States Constitution explicitly safeguards freedom of speech, emphasizing its critical role in a functioning democracy. Similarly, many other countries, whether through explicit constitutional provisions or judicial interpretations, recognize and protect this fundamental right.

Safeguards for Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all its citizens; however, these freedoms are not absolute because Article 19 (2) of the constitution provides a safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of this right for certain purposes. Safeguards outlined are discussed below-

Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the –

• The state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety.
• Interest id Integrity and Sovereignty of India – this was added by the 16 th constitutional amendment act under the tense situation prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India as political purposes for fighting elections.
• Contempt of court: Restriction can be imposed if the speech and expression exceed the reasonable and fair limit and amounts to contempt of court.
• Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to prohibit unrestrained malicious propaganda against a foreign-friendly state. This is because it may jeopardize the maintenance of good relations between India and that state.
• Defamation or incitement to an offense: A statement, which injures the reputation of a man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
• Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code gives instances of restrictions on this freedom in the interest of decency or morality. The sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality is very subjective and there is no strict definition for them. Also, it varies with time and place

Freedom of Speech on Social Media

The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees. It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.

In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticized an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High Court held that these orders are in line with the very essence of the Indian Constitution

Hate Speech

The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. But the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.

Freedom of Speech in Art

In relation to art, the court has 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.”

There are restrictions in what can be shown in cinemas and this is governed by the Cinematograph Act, 1952.

Important Case Laws

Case: 1- People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 568)

Public interest litigation (PIL) was filed under Article 32 of the Constitution of India by PUCL, against the frequent cases of telephone tapping happening throughout the nation. And thus the validity of Section 5(2) of The Indian Telegraph Act, 1885 was challenged. It was then observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions laid down under the Section 5(2). If any of these two conditions are absent from the case, then the government of India has no right to exercise its power under this section. Telephone tapping, therefore, will be violative of Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).

2-  Romesh Thapar v. The State of Madras (AIR 1950 SC 124).

According to the Supreme court of India, public order is very much different from law and order and security of the state. The term ‘public order’ indicates the sense of public peace, public safety and tranquility. Anything that disturbs public peace, in turn, disturbs the public. But mere criticism of the government does not disturb public order. A law which hurts the religious feelings of any class has been held to be valid and reasonable restriction aimed at maintaining the public order.

3- Bijoe Emmanuel v. State of Kerala ( 1986 3 SC 615 )

This case is also known as national anthem and freedom of Silence case. In this present case three children were expelled from the school for not singing the National anthem although they respectfully stood when the others were singing the national Anthem. They approach the H.C. of Kerala against the said order, but H.C. upheld the expulsion Valid by imposing the fundamental duty. On appeal, the Supreme Court held that the students did Not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, held That freedom of speech and expression also include the right to silence itself.

4- Kanhaiya Kumar v. State of NCT of Delhi ( AIR 2016 )

Students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian Slogans. A case therefore filed against several students on charges of offence under Sections 124-A, 120-B, and 34. The University’s Students Union president Kanhaiya Kumar was arrested after Allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released On bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.

Expressing one’s opinions through speech is one of the basic rights guaranteed by the Constitution of India and in the modern context, the right to freedom of speech and expression is not just limited to expressing one’s own views through words but it also includes the circulation of those views in terms of writing, or through audiovisuals, or through any other way of communication. This right also comprises of the right to freedom of the press, the right to information, etc. Hence it can be concluded with this article that the concept of freedom is very much essential for the proper functioning of a Democratic State.

The words “in the Interest of public order” and “reasonable restrictions” mentioned under Article 19 of the Constitution of India are used to indicate that the rights provided under this section are not absolute and they can be restricted for the safety of the other people of the nation and to maintain the public order and decency. 

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

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AMENDMENT OF CONSTITUTION

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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 Michigan Daily

One hundred and thirty-three years of editorial freedom

Preserving a balanced approach to freedom of expression

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As a member of the University of Michigan community, I was relieved to read President Santa Ono’s acknowledgment on April 2, 2024, that further deliberation and greater care are necessary before any changes are made to policies governing freedom of expression. But the new language initially proposed a few days ago would alter long-standing commitments on fundamental questions of free expression at the University and place significantly greater restrictions on free speech and dissent. As someone who was chair of the Senate Assembly Civil Liberties Board from 1988 to 1989 when the existing protections on speech were first drafted, I have been alarmed by hasty changes that are now being suggested to a policy that has served the University well for more than 30 years. I strongly urge students, faculty and staff to review the proposed new language and to submit a comment in the electronic survey .

Here is an example of why we should be concerned that the new policy could restrict legitimate forms of public speech and protest: The policy would disallow activities that would “impede the free flow of persons about campus … including any pedestrian, bicycle, or vehicular traffic” or “mak(e) loud or amplified noises” that could “creat(e) substantive distractions.” Would this policy even permit a spontaneous rally on the Diag or planned march across campus, if such a rally or march would slow student movement between classes or disrupt traffic, or involve speakers using amplification or might distract students in nearby classrooms? This overly broad conception of “disruption” would curtail many legitimate, constitutionally-protected forms of public speech or protest. Moreover, the penalties for students alleged to be engaged in such disruption would be decided by appointed “officers” of the University, rather than by a more representative deliberative body.

I would encourage members of the U-M community to read the existing policy on freedom of expression, which “strikes an appropriate and constitutional balance between the rights of those who speak at and attend university events and the rights of those who might wish to dissent.” Unlike the proposed new guidelines couched in terms of “disruption,” the University’s existing policy recognizes that groups with lesser power or popularity often must, to some degree, intrude upon public events and normal activities in order to make their concerns visible. It also notes that such forms of dissent, so long as they are compatible with continuing the event or activities, are forms of protected speech. This policy also makes it clear that it is the responsibility of organizers, speakers, and protestors alike to do what is necessary, insofar as possible, to enable the event to proceed after any interruptions.

In its original form, the existing policy was the result of sustained work by the Senate Assembly Civil Liberties Board in 1988, involving participation by faculty, students and staff. It was endorsed and taken to the Regents by then-acting University President Robben Fleming , who had an established record of protecting freedom of expression and protest during his first tenure as president, even in face of the challenges of the turbulent period of 1968 to 1979. Indeed, it was that experience, along with the record of positive accomplishments that campus protests moved forward, that persuaded him of the need for a clear, balanced policy on freedom of expression. The resulting guidelines are considered by many a model, and the need to dramatically alter their protections has not been established. Reasonable people may differ on how to evaluate the recent demonstration at Honors Convocation. But we should all be able to recognize that responding to that event by casting a net over a wide array of forms of expression and declaring them all “disruptive” is both unwise and unfair.

Dr. Peter Railton is a John Stephenson Perrin Professor of Philosophy at the University of Michigan. He can be reached at [email protected].

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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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Defamation And Freedom Of Speech And Expression

• What is defamation?
• What is right to freedom of expression?
• What is the impact of defamation law on freedom of speech and expression?
• What is the view of the Supreme Court of India on defamation as a criminal offense?
• What is the role of social media in defamation cases?
• Some popular cases on defamation.

Defamation:

• The spoken or published sentence should "expose the plaintiff to hatred, contempt, ridicule, or obloquy"; or
• The spoken or published sentence should "tend to injure him in his profession or trade"; or
• The sentence should "cause him to be shunned or avoided by his neighbors.  

Right To Freedom Of Speech And Expression:

• This right to freedom of speech and expression is available to a citizen of India; this is not applicable to any other persons who are not a citizen of India. Like; foreign nationals.
• The "freedom of speech under Article 19(1)(a)" includes the right to express one's view and opinions about any kind of issue and it can be done through any kind of medium, such as by words of mouth, by writing, by printing, through picturisation or through a movie.
• This right is not absolute as it allows the Government of India to make laws which can impose reasonable restriction in the cases which are involved with the sovereignty and integrity of India or the security of the state, or friendly relations with foreign nations, even public order, decorum and morality and contempt of Court, defamation and incitement to an offence.
• Restrictions like above mentioned on the freedom of speech of any citizen may be imposed as much by an action of the state as by its inaction. Thus, if failure is found on the part of the state to guarantee to all its citizens the 'fundamental right to freedom of speech and expression would also constitute a violation of Article 19(1) (a)'.4

View Of Supreme Court Of India On Defamation As A Criminal offence:

Role of social media on defamation cases:, indian laws on internet defamation.

• Maneka Sanjay Gandhi and Anr vs. Rani Jethmalani, 1978 Citation: 1979 AIR 468, 1979 SCR (2) 378
• Badrinath vs. Government of Tamil Nadu and Ors Citation: AIR 2000 SC 324
• Nikita Chauhan, "Social Media and Online Defamation" [2022] JLRJS - https://jlrjs.com/social-media-and-onlinedefamation/URL Accessed on (8 October 2023)
• Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs. Smt Nilangi Rajiv Gadkari [AIR 2009, SC Family Court Appeal no.67] Accessed on (08 October 2023)
• Kalandi Charan Lenka vs. State of Odisha [AIR 2016, SC 7596] Accessed on (09 October 2023)
• Maneka Sanjay Gandhi and Anr vs. Rani Jethmalani, 1978 [1979 AIR 468]
• Badrinath vs. Government of Tamil Nadu and Ors, 2000 [AIR 2000 SC 324]
• Sec 499 of Indian Penal Code accessed on (07 October 2023)
• Sec 500 of Indian Penal Code < INDIA CODE> accessed on (07 October 2023)
• Article 19(1)(a). The Constitution of India, 1950.
• Aditya Dubey, "Freedom of Speech and Expression under the Constitution of India" [2019] iPleaders https://blog.ipleaders.in/freedom-speech-expression-constitutionindia/URL accessed on (07 October 2023)
• Nimisha Mishra, "Defamation Laws and Chilling Effect on Freedom of Speech and Expression" [2020] Lexpeeps https://www.google.com/amp/s/lexpeeps.in/defamation-laws-and-chilling-effect-on-freedom-of-speech-and-expression/html accessed on (07 October 2023)
• Gagandeep Singh Narula, "Is Criminal Defamation Law against Article 19 and the Right to Reputation" 10 [October 2022] https://blog.ipleaders.in/is-criminal-defamation-law-against-article-19-and-the-right-to-reputation/html accessed on (08 October 2023)
• Nikita Chauhan, "Social Media and Online Defamation" [2022] JLRJS <https://jlrjs.com/social-media-and-online-defamation/URL> accessed on (8 October 2023)
• Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs. Smt Nilangi Rajiv Gadkari [AIR 2009, SC Family Court Appeal no.67] accessed on (08 October 2023)
• Kalandi Charan Lenka vs. State of Odisha [AIR 2016, SC 7596] accessed on (09 October 2023)
• Aditya Dubey, "Freedom of Speech and Expression under the Constitution of India" [2019] iPleaders
• https://blog.ipleaders.in/freedom-speech-expression-constitution-india/URL accessed on (07 October 2023)
• 'The impact of Defamation Law on Freedom of Speech and Expression'
• Nimisha Mishra, "Defamation Laws and chilling Effect on Freedom of Speech and Expression" [2020]
• Lexpeeps: https://www.google.com/amp/s/lexpeeps.in/defamation-laws-and-chilling-effect-on-freedom-of-speech and-expression/html accessed on (07 October 2023)
• Gagandeep Singh Narula, "Is Criminal Defamation Law against Article 19 and the Right to Reputation" 10 [October 2022]: https://blog.ipleaders.in/is-criminal-defamation-law-against-article-19-and-the-right-toreputation/html accessed on (08 October 2023)
• Sec 500 of Indian Penal Code states that "any person who violates Section 499 or finds violating it will be charged under this section i.e. section 500. Punishment is mentioned in this section the culprit will be imprisoned for two years, a fine, or both."

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The government attacks the freedom of speech

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“I do not agree with a word that you say, but I will defend to the death your right to say it.”

— Voltaire, 1694-1778

Holy Week was not a good week for personal liberty as governments throughout the United States engaged in direct and subtle attacks on free speech.

The freedom of speech is unique in American history and ethos. It was the linchpin of the secession of the 13 colonies from Great Britain. It is often claimed at the most distinguishing characteristic between life in the U.S. and all other countries. It has suffered and survived grievous government assaults from the Alien and Sedition Acts of the 1790s to the suspension of habeas corpus during the War Between the States to the Red Scares in the last century to the monitoring of social media today.

This great freedom continuously pushes back at the governments that assault it. The freedom of speech is a value and metaphor for the unique, indefeasible, permanent, natural right to think as you wish, to say what you think, to read what you please, to publish what you say, and to do all this without a government permission slip and without fear of government reprisal.

The freedom of speech is both a natural and a constitutional right. It is expressly guaranteed in the First Amendment. That amendment commands not that Congress grant the freedom of speech but that Congress is prohibited from infringing upon it.

From and after the ratification of the 14th Amendment, federal and state courts have applied the prohibition on congressional infringement to all governments — federal, state and local; and to all branches of those governments — legislative, executive and judicial.

When teaching law students the values of the Bill of Rights, I often began with a curious hypothetical. If the states ratified a constitutional amendment repealing the First Amendment, would the freedom of speech still exist in America? The short answer to that question is: Yes. The longer answer reflects that speech is not just a constitutional right. Because free speech comes from our humanity — a gift of our Creator — we have and can exercise this right whether it is reduced to writing and recognized by the government or not.

Moreover, every person employed by any government anywhere in the United States takes an oath of allegiance to the Constitution, which includes all of its amendments. You’d never know that from events during the past week.

Here is the backstory.

Last week, the State of Texas enacted a law requiring all state schools — from pre-K to graduate schools — to punish speech deemed by officials to be antisemitic. Also last week, the State of South Dakota did the same. The governors of both states proclaimed their desire to protect certain people from the use of words manifesting ideologies based on “intolerance.”

In Oklahoma last week, three FBI agents visited the home of a local activist to talk to her about her social media posts. She taped her encounter with them. When the agents revealed that they lacked a warrant, she asked them to leave. Good for her! She could have called the local police and reported three strangers with guns harassing her on her front porch! Her social media posts are none of the government’s business.

The Texas and South Dakota statutes also suffer from their publicly stated efforts to protect only certain discreet groups. That violates the Equal Protection Clause of the 14th Amendment, which expressly prohibits the states from isolating groups for special protection or for less protection.

Also last week, a justice of the New York State Supreme Court — that’s the trial court in New York — entered a gag order prohibiting former President Donald Trump from criticizing the daughter of the justice. The daughter is a fundraiser for Democratic clients who use the prosecution of the former president in their fundraising solicitations. The daughter has voluntarily entered the marketplace of ideas by her professional work, much of which is aimed at the former president.

Put aside the unseemly appearance of a trial judge signing an order to insulate his own daughter from political criticism by a public figure whom the daughter and her clients publicly criticize; these gag orders are direct assaults on the freedom of speech.

I recognize that I am an outlier here, as most judges who have tried high-profile criminal cases favor the limited use of gag orders to insulate jurors and protect witnesses from influences outside the courtroom.

But the fact remains that gag orders are a direct government assault on the freedom of speech. In Trump’s case, it is exquisitely unfair for the judge’s daughter to use the criminal prosecution of Trump as a fundraising tool while her father — the judge in Trump’s criminal case — has silenced Trump himself from commenting publicly about this.

What ever happened to the freedom of speech?

Each of these events is profoundly unconstitutional as they all amount to the government getting involved in the content of speech. The Supreme Court has ruled consistently since the 1960s that the whole purpose of the First Amendment is to keep the government out of the business of speech. Government may not favor or disfavor speech; and it may not evaluate the content of speech. Thus, it may not encourage or deter or punish speech.

If government could evaluate the content of speech and punish what it characterizes as intolerance or disinformation, we’d have no freedoms remaining. Government is the negation of liberty. It exists by stealing, prohibiting and compelling. Speech is the last bastion against the government’s totalitarian impulses. If the government could punish the speech it hates and fears or the speech its patrons don’t want to hear, we will have no freedoms remaining.

Why do we repose the liberties guaranteed by the Constitution into the hands of those who subvert them?

Andrew P. Napolitano, a former New Jersey Superior Court Judge, has published nine books on the U.S. Constitution. To learn more, visit  JudgeNap.com .

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Professors From Carleton College Give Lecture on Academic Freedom and Free Speech on Campus

April 4, 2024 , by carolyn neugarten, news editor.

c/o Wesleyan Connection

On March 25, the University’s annual Hugo L. Black Lecture on Freedom of Expression hosted Carleton College professors Amna Khalid and Jeff Snyder to analyze academic freedom in higher education in a presentation entitled “ Free Speech for Me, But Not for Thee: Campus Censorship from the ‘STOP WOKE ACT’ to Israel-Palestine. ” Sponsored by the Allbritton Center for the Study of Public Life and introduced by Dean of Social Sciences Mary-Jane Rubenstein, the Hugo L. Black Lecture is an annual on-campus event that attracts public figures and scholars involved in the national First Amendment debate. 

Universities across the country have been engaging in a debate around what professors and students can say, when they can say it, and whom they can say it to, particularly with regard to the ongoing war in Gaza. After being introduced by Rubenstein, Khalid and Snyder addressed the First Amendment’s past and present during their presentation, speaking to a group of roughly 50 University faculty and students.

“Without free expression on campus, you no longer have an educational institution,” Snyder said. “[You have an] industrial institution or a factory, which would just reproduce the state of existing knowledge. It would be a form of indoctrination, not a form of education or liberation.”

Khalid is Associate Professor of History and Director of Asian Studies at Carleton College, specializing in South Asian history and the history of medicine. As a young girl growing up alongside Pakistani military dictatorships, Khalid developed an interest in free expression and speech issues. She currently hosts a podcast called “Banished,” where she explores academic freedom, free expression, campus politics, and the culture wars, and she has published essays in outlets such as the Chronicle of Higher Education, the Conversation, Inside Higher Ed, and the New Republic.

Snyder is an Associate Professor of Educational Studies at Carleton College. He is a self described educational historian, specializing in academic freedom, free expression, and their roles on liberal arts college campuses. Snyder’s recent work includes “Making Black History: The Color Line, Culture and Race in the Age of Jim Crow,” which examines how the celebration of the Black past affected the lives of African Americans during the Jim Crow era.

In the lecture, they discussed ideology and legislation, like the Stop WOKE Act in Florida, that restrict curricula. These censor not only the views teachers can present to their classes, but also historical primary source documents, due to their potential to cause students psychological distress.

Khalid believes that the Stop WOKE Act and similar legislation remove crucial independent thinking skills from the learning experience. As a scholar in South Asian history, Khalid argued that engaging with relevant material is critical to learning topics such as the rise of fundamentalism in the region.

“ The tragedy is, at the end of the day, it’s not just the professors who are losing out, it’s really the students who are losing,” Khalid said in an interview prior to the lecture.

The lecture also cited statistics such as a staggering 33% increase in public K-12 school book bans in a single year, particularly involving bans of texts with themes of race, gender, and LGBTQ characters. Additionally, over 300 gag order bills concerning gender and race were introduced in 46 state legislatures, furthering the censorship of teaching materials and civic engagement projects. Snyder emphasized that limiting curricula hinders open discussion and the search for truth.

“Without academic freedom, there is no exchange of ideas,” Snyder said. “There would be no ability of researchers to share findings that challenge the status quo, or even have their findings peer-reviewed.”

Promoting academic freedom takes work on the part of students and faculty, according to Khalid and Snyder. Voicing informed opinions, including challenging ones, is critical for a more diverse and productive University community.  Students appreciated the candor of the lecture and felt it was relevant to today’s educational and political climate. 

“I learned that it’s important that speech can confront us with viewpoints that provoke discomfort,” Kaylin Maher ’26 said. “Allowing these different perspectives to be expressed creates a ground for dialogue and understanding.”

Carolyn Neugarten can be reached at [email protected] .

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Is This the End of Academic Freedom?

By Paula Chakravartty and Vasuki Nesiah

Dr. Chakravartty is a professor of media, communication and culture at New York University, where Dr. Nesiah is a professor of practice in human rights and international law.

​At New York University, the spring semester began with a poetry reading. Students and faculty gathered in the atrium of Bobst Library. At that time, about 26,000 Palestinians had already been killed in Israel’s horrific war on Gaza; the reading was a collective act of bearing witness.

The last poem read aloud was titled “If I Must Die.” It was written, hauntingly, by a Palestinian poet and academic named Refaat Alareer who was killed weeks earlier by an Israeli airstrike. The poem ends: “If I must die, let it bring hope — let it be a tale.”

Soon after those lines were recited, the university administration shut the reading down . Afterward, we learned that students and faculty members were called into disciplinary meetings for participating in this apparently “disruptive” act; written warnings were issued.

We have both taught at N.Y.U. for over a decade and believe we are in a moment of unparalleled repression. Over the past six months, since the start of Israel’s war on Gaza, we have seen the university administration fail to adequately protect dissent on campus, actively squelching it instead. We believe what we are witnessing in response to student, staff and faculty opposition to the war violates the very foundations of academic freedom.

While N.Y.U. says that it remains committed to free expression on campus and that its rules about and approach to protest activity haven’t changed, students and faculty members in solidarity with the Palestinian people have found the campus environment alarmingly constrained.

About a week after Hamas’s attacks in October, the Grand Staircase in the Kimmel student center, a storied site of student protests , closed indefinitely; it has yet to reopen fully. A graduate student employee was reprimanded for putting up fliers in support of Palestinians on the student’s office door and ultimately took them down; the person is not the only N.Y.U. student to face some form of disciplinary consequence for pro-Palestinian speech or action. A resolution calling for the university to reaffirm protection of pro-Palestinian speech and civic activity on campus, passed by the elected Student Government Assembly back in December, has apparently been stuck in a procedural black hole since.

The New York Police Department has become a pervasive presence on campus, with over 6,000 hours of officer presence added after the war broke out. Hundreds of faculty members have signed onto an open letter condemning the university’s “culture of fear about campus speech and activism.”

Such draconian interventions are direct threats to academic freedom.

At universities across the country, any criticism of Israel’s policies, expressions of solidarity with Palestinians, organized calls for a cease-fire or even pedagogy on the recent history of the land have all emerged as perilous speech. In a letter to university presidents in November, the A.C.L.U. expressed concern about “impermissible chilling of free speech and association on campus” in relation to pro-Palestinian student groups and views; since then, the atmosphere at colleges has become downright McCarthyite .

The donors, trustees, administrators and third parties who oppose pro-Palestinian speech seem to equate any criticism of the State of Israel — an occupying power under international law and one accused of committing war crimes — with antisemitism. To them, the norms of free speech are inherently problematic, and a broad definition of antisemitism is a tool for censorship . Outside funding has poured into horrifying doxxing and harassment campaigns. Pro-Israel surveillance groups like Canary Mission and CAMERA relentlessly target individuals and groups deemed antisemitic or critical to Israel. Ominous threats follow faculty and students for just expressing their opinions or living out their values.

To be clear, we abhor all expressions of antisemitism and wholeheartedly reject any role for antisemitism on our campuses. Equally, we believe that conflating criticism of Israel or Zionism with antisemitism is dangerous. Equating the criticism of any nation with inherent racism endangers basic democratic freedoms on and off campus. As the A.C.L.U. wrote in its November statement, a university “cannot fulfill its mission as a forum for vigorous debate” if it polices the views of faculty members and students, however much any one of us may disagree with them or find them offensive.

In a wave of crackdowns on pro-Palestinian speech nationwide, students have had scholarships revoked, job offers pulled and student groups suspended. At Columbia, protesters have reported being sprayed by what they said was “skunk,” a chemical weapon used by the Israeli military; at Northwestern, two Black students faced criminal charges , later dropped, for publishing a pro-Palestinian newspaper parody; at Cornell, students have been arrested during a peaceful protest . In a shocking episode of violence last fall, three Palestinian students , two of them wearing kaffiyehs, were shot while walking near the University of Vermont.

Many more cases of student repression on campuses are unfolding even as we write this.

Academic freedom, as defined by the American Association of University Professors in the mid-20th century , provides protection for the pursuit of knowledge by faculty members, whose job is to educate, learn and research both inside and outside the academy. Not only does this resonate with the Constitution’s free speech protections ; international human rights law also affirms the centrality of academic freedom to the right to education and the institutional autonomy of educational institutions.

Across the United States, attacks on free speech are on the rise . In recent years, right-wing groups opposed to the teaching of critical race theory have tried to undermine these principles through measures including restrictions on the discussion of history and structural racism in curriculums, heightened scrutiny of lectures and courses that are seen to promote dissent and disciplinary procedures against academics who work on these topics.

What people may not realize is that speech critical of Israel’s occupation and apartheid policies has long been censored, posing persistent challenges to those of us who uphold academic freedom. Well before Oct. 7, speech and action at N.Y.U. in support of Palestinians faced intense and undue scrutiny.

Our students are heeding Refaat Alareer’s call to bear witness. They are speaking out: writing statements, organizing protests and responding to a plausible threat of genocide with idealism and conviction. As faculty members, we believe that college should be a time when students are encouraged to ask big questions about justice and the future of humanity and to pursue answers however disquieting to the powerful.

Universities must be places where students have access to specialized knowledge that shapes contemporary debates, where faculty members are encouraged to be public intellectuals, even when, or perhaps especially when, they are expressing dissenting opinions speaking truth to power. Classrooms must allow for contextual learning, where rapidly mutating current events are put into a longer historical timeline.

This is a high-stakes moment. A century ago, attacks on open discussion of European antisemitism, the criminalization of dissent and the denial of Jewish histories of oppression and dispossession helped create the conditions for the Holocaust. One crucial “never again” lesson from that period is that the thought police can be dangerous. They can render vulnerable communities targets of oppression. They can convince the world that some lives are not as valuable as others, justifying mass slaughter.

It is no wonder that students across the country are protesting an unpopular and brutal war that, besides Israel, only the United States is capable of stopping. It is extraordinary that the very institutions that ought to safeguard their exercise of free speech are instead escalating surveillance and policing, working on ever more restrictive student conduct rules and essentially risking the death of academic freedom.

From the Vietnam War to apartheid South Africa, universities have been important places for open discussion and disagreement about government policies, the historical record, structural racism and settler colonialism. They have also long served as sites of protest. If the university cannot serve as an arena for such freedoms, the possibilities of democratic life inside and outside the university gates are not only impoverished but under threat of extinction.

Paula Chakravartty is a professor of media, communication and culture at New York University, where Vasuki Nesiah is a professor of practice in human rights and international law. Both are members of the executive committee of the N.Y.U. chapter of the American Association of University Professors and members of N.Y.U.’s Faculty for Justice in Palestine.

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] .

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Scotland’s new hate crime law: what does it cover and why is it controversial?

The government insists the law, coming into force on Monday, is needed to protect victims but critics say it limits freedom of expression

A new law to tackle hate crime in Scotland will be implemented on 1 April, and in the past few weeks there have been escalating concerns about how it will be policed and how it might affect freedom of speech. Scotland’s first minister, Humza Yousaf , has hit back at “disinformation and inaccuracy” being spread about its implementation.

What are the aims of the new hate crime law?

The Scottish government says that Hate Crime and Public Order (Scotland) Act will provide greater protection for victims and communities. It is intended to consolidate existing hate crime laws, but also creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. These additional provisions add to longstanding offences relating to stirring up racial hatred, which have been in place across the UK since 1986.

The law, which was passed in 2021 and has taken an unusually long time to come into force, had a rocky passage though Holyrood , with MSPs voting to strengthen freedom of speech provisions after earlier iterations provoked an outcry from religious and arts groups.

Yousaf, who was justice secretary at the time and helped bring the bill through parliament, assured MSPs that it balanced protections for victims of hate crime with safeguarding freedom of expression.

Why does the new law not include misogyny?

There was anger at the time that the bill excluded hatred of women. Even before it was passed, an independent working group, led by Helena Kennedy KC, was established to consider whether adding sex to the list of other protected characteristics or creating a standalone offence would better tackle misogynist abuse.

The group later recommended that the Scottish government introduce a misogyny act to crack down on street harassment and organised online hate. It was included in Yousaf’s programme for government last September but has yet to be published and there is no further information available about its timetabling.

What are the concerns about the new laws and who is raising them?

There is concern that the new measures could be used maliciously against certain groups for expressing their opinions, in particular gender-critical feminists.

The SNP MP Joanna Cherry has said she has no doubt that the new law “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs”.

Some people who disagree with the gender-critical stance of the author and activist JK Rowling have already threatened to lodge complaints about her with Police Scotland from 1 April.

Whether these threats come to pass or not, gender-critical women also raise the prospect of the wider – and hard to quantify – effect of the legislation.

There are worries that allegations of hate crime can be made anonymously – although third-party reporting centres where this can be done have existed for 10 years and are a legacy of the Macpherson report .

The Association of Scottish Police Superintendents has raised serious concerns about the pressure it will put on an already overstretched force, warning that there is “enough anger and hateful bile online to occupy every police officer in Scotland”, given that current guidelines state that all hate crime complaints should be investigated.

The Scottish Police Federation says officers have not received sufficient training in how to mediate such complex territory, citing a “inadequate” two-hour online module.

What assurances have been made?

Yousaf has insisted there is a “very high threshold” for prosecution and a “triple lock” on freedom of expression in the act, including an explicit clause, a “reasonableness” defence, and compatibility with the European convention on human rights.

Adam Tomkins, a former Tory MSP and convener of Holyrood’s justice committee who was closely involved with the passage of the bill in 2021, said: “Asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.”

Tomkins and others have warned that social media postings and some reporting on the act has wrongly suggested that it is criminalising comments that are merely offensive to others.

While many groups covered by the new act welcome the extension and streamlining of the law, some worrythat the focuson the row about transphobia will deter other communities from reporting hate crimes.

What is a ‘non-crime hate incident’ and how does that fit into the picture?

While supporters of the act insist that the bar for prosecution is set high, this sits uncomfortably with the police policy of recording “hate incidents” that do not meet the criminal threshold and are based on the perception of the victim or a bystander.

Last year, freedom of information requests made by the Guardian revealed a gradual increase in the numbers of these non-crime hate incidents being recorded. The Scottish Conservative MSP Murdo Fraser last week threatened the police with legal action after he was logged for a complaint about a social media post in which he stated: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat.”

Although this method of recording has been in place for many years as a means of monitoring community tensions (for example to track the levels of race hate in an area), Police Scotland is now reviewing its procedures after a court of appeal ruling stated that a similar policy in England could have a chilling effect on freedom of expression.

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Concerns Arise Over Hate Speech Legislation Affecting Religious Communities in Scotland

By Michael Kelly

In Edinburgh, Scotland, the recent enactment of the Hate Crime and Public Order Act has raised alarm among Christian groups, particularly concerning its potential implications for religious freedom and expression. The legislation, which took effect on April 1, introduces an offense related to the possession of materials that could incite hatred on various grounds, including religion.

Amid these developments, church officials are worried that traditional religious texts, such as the Bible or the Catechism of the Catholic Church, might inadvertently come under scrutiny if deemed offensive under the new statute. Scotland’s faith leaders have pointed to the possibility of “vexatious” legal actions arising from the legislation.

Scottish Police Federation’s David Kennedy has highlighted the challenges that law enforcement now faces in navigating sensitive and “emotive” topics, forecasting a potential erosion of public trust in the police force.

Scottish bishops previously conveyed their apprehensions during the legislative proposal’s review stage. They stressed the importance of balancing any new legal measures against key liberties like free speech and religious rights.

Anthony Horan, from the Catholic Parliamentary Office, also underscored these concerns, cautioning that the law’s vague definitions and low threshold for offenses might trigger unfounded claims. According to Horan, even the fundamental teachings of the Catholic Church might be considered controversial under the new legislation.

Lorcan Price of the Alliance Defending Freedom (ADF) has pointed out the potential risks this law poses to religious practices, drawing parallels with legal actions in neighboring regions where expressing religious beliefs led to criminal charges.

The case of Finnish politician Päivi Räsänen serves as a pertinent example, where legal trouble stemmed from her comments on her church’s participation in LGBTQ+ events. Although finally acquitted, her situation is illustrative of the contentious interface between religious expression and hate speech laws.

Notable figures like author J.K. Rowling have also gotten involved in related discourse on freedom of speech, as she challenged Scottish authorities over the criminalization of statements about biological sex.

Scottish law enforcement predicts a rise in the number of reported incidents following the act’s implementation, indicating that the law’s impact on society and its confrontation with existing rights will continue to be an issue of crucial significance.

Article penned by Michael Kelly for OSV News, originating from Dublin.

FAQs about Scotland’s Hate Crime and Public Order Act

What does Scotland’s Hate Crime and Public Order Act entail?

The Act introduces an offense related to the possession of inflammatory materials that could incite hatred based on age, disability, religion, sexual orientation, and gender identity.

Why are Christian leaders concerned about the new hate speech law?

They worry that the law’s vague terms and low threshold for offenses might lead to unwarranted complaints against passages in the Bible or the Catechism of the Catholic Church.

How does the Alliance Defending Freedom view this law?

ADF lawyer Lorcan Price views the law as presenting significant dangers to the free practice of religion and expression.

What are the broader implications for freedom of speech?

The law’s impact on freedom of speech has been a point of discussion and concern, as evidenced by J.K. Rowling’s public comments and the case of Päivi Räsänen in Finland.

What is the response from Scottish law enforcement?

Police officials in Scotland anticipate an increase in reports under the new law and acknowledge the complex nature of enforcing it.

The introduction of Scotland’s Hate Crime and Public Order Act has ignited a crucial debate on the balance between combating hate speech and protecting religious freedoms and free expression. As church leaders voice their apprehensions and law enforcement braces for a potential uptick in complaints, the effectiveness and fairness of the Act’s implementation remain under careful scrutiny. How this legislation will ultimately intersect with cherished freedoms is yet to be seen, but its broader implications for democratic rights and societal harmony are clear and will be closely monitored by both religious communities and civil liberties advocates moving forward.