freedom of speech should be restricted debate

We Should Restrict Freedom of Speech

Is it ever right for Governments to restrict freedom of speech?

All the Yes points:

Free speech is an inherently ambiguous concept that requires definition and interpretation; governme…, irrespective of its us provenance, we recognise that ‘the most stringent protection of free speech w…, speech acts lead to physical acts. thus pornography, hate speech and political polemic are causally …, government must protect its citizens from foreign enemies and internal enemies – thus freedom of spe….

• Some intellectual views are antithetical to beliefs held by major religions. In order to protect the…

We need to protect minors (those under the age of majority) from exposure to obscene, offensive or p…

All the no points:, yes because….

Free speech is an inherently ambiguous concept that requires definition and interpretation; Government is the obvious place for such clarifications to be made.

No because…

Governments should be distrusted. (a) Many political theorists argue that checks and balances need to be put in place in order to prevent Governmental abuse. The right to freedom of speech is too important to leave in the hands of Government. (b) An independent judiciary, or politically-independent body for assessing such circumstances is the only place that can effectively guarantee.

Irrespective of its US provenance, we recognise that ‘the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.'[[Schenck v. United States, 3 March, 1919]]. Thus shouting fire in a crowded cinema when there is no fire, and you know it, is wrong. We accept this limit on free speech, therefore the principle is concede

‘After all, the practical reason why when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest'[[CIVIL DISOBEDIENCE, H D Thoreau]] Tyranny of the majority is as good a reason as any to prevent Government from being involved in censorship – the majority of the population may be anti-homosexuality, or anti-immigrant, or indeed pro-genetically modified foods. In a healthy democracy it is vital that smaller groups be heard, and there is no way to guarantee these voices if the Government can restrict free speech.

Speech acts lead to physical acts. Thus pornography, hate speech and political polemic are causally linked to rape, hate crimes, and insurrection.

Society is self-regulating. (a) The link between speech acts and physical acts is a false one – people who commit hate crimes are likely to have read hate speech, people who commit sex crimes are likely to have watched pornography but not necessarily the other way around. Viewers of pornography and readers of hate speech are therefore not incited to commit anything they otherwise would not do. (b) Exposing pornography, hate speech and political polemic (extreme nationalism etc.) to society increase the likelihood that it will be discredited and defeated, rather than strengthened through persecution. This is Milton’s argument from ‘Areopagitica’ (1644) – truth will combat error.

Government must protect its citizens from foreign enemies and internal enemies – thus freedom of speech can be acceptably curtailed during times of war in order to prevent propaganda and spying which might undermine the national interest.

The government may well wish to surpress publication of information that would be prejudicial to its success in the next elections or its war campaign, but it’s in the public interest to know about their dirty dealings or illegal activities.

Some intellectual views are antithetical to beliefs held by major religions. In order to protect the..

Some intellectual views are antithetical to beliefs held by major religions. In order to protect the religious from these views, we should prevent people from saying these offensive things.

Although some views that may be expressed might be contrary to religious teaching, we must defend the rights of the non-religious within any society too.

We need to protect minors (those under the age of majority) from exposure to obscene, offensive or potentially damaging materials.

Arguments that invoke censorship of materials for minors are just that – arguments for the censorship of materials for minors. They do not concede the general principal that censorship is good because until the age of majority the state acts in loco parentis and must act as a conservative parent at that.

Alright bud thx for the help

No, because it is not right. it is written in stone and it is also one of our rights

We would love to hear what you think – please leave a comment!

THE ALGONQUIN HARBINGER

• Limitations are necessary for freedom of speech

Meredith Wu

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

Verina Hanna , Staff Writer March 17, 2022

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

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

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

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

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

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

— Verina Hanna

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

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

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

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

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Jay • Jan 24, 2024 at 2:04 pm

very much goodie read

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

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I agree. Indeed this is the best article.

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

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Watch CBS News

How free speech is under attack in the U.S.

February 20, 2022 / 9:12 AM EST / CBS News

When someone says something we disagree with, should we shut them up? In 1927, Supreme Court Justice Louis Brandeis had an answer: "The remedy to be applied is more speech, not enforced silence."

Well, in that case, the internet should have solved everything, notes correspondent David Pogue – it's nothing but more speech. And yet lately, the news is full of stories about people trying to limit other people's expression:

• Florida lawmakers are advancing a pair of bills that would bar school districts from encouraging classroom discussions about sexual orientation or gender identity – what critics are calling "Don't Say Gay" bills.
• Nearly a dozen states have introduced bills that would direct what students can and cannot be taught about the role of slavery in American history and the ongoing effects of racism in the U.S. today .
• A Tennessee school board removed "Maus," a Pulitzer Prize-winning graphic novel about the Holocaust, from its curriculum.
• Spotify faced growing controversy over episodes of Joe Rogan's podcast containing racial slurs and COVID-19 misinformation .
• An incoming Georgetown Law administrator was assailed by a student group for posting a "racist, sexist, and misogynistic" tweet that criticized President Joe Biden's announcement that he would nominate a Black woman for the Supreme Court.

"I would argue that the culture of free speech is under attack in the U.S.," said Jacob Mchangama, the author of "Free Speech," a new book that documents the history of free expression. "And without a robust culture of free speech based on tolerance, the laws and constitutional protection will ultimately erode.

"People both on the left and the right are sort of coming at free speech from different angles with different grievances, that point to a general loss of faith in the First Amendment."

The free-speech erosion is even happening in schools. Since January last year, according to PEN America, Republican lawmakers have introduced more than 150 state laws that would restrict how teachers can discuss race, sexual orientation, and gender identity in the classroom.

Jennifer Given, who teaches high-school history in Hollis, New Hampshire, said of the laws, "It's about making up false narratives to further a political goal of your own.

"It's a really scary time to be a teacher," she told Pogue. "We're self-censoring, We are absolutely avoiding certain things and ideas in an effort to stay within the lines as best we understand them."

In New Hampshire, a new law limits what teachers can say about racism and sexism – and a conservative group is offering a $500 bounty to anyone who turns in a teacher who violates it.

Given said, "The ghost of Senator McCarthy is alive and well in some of our state house hallways."

Pogue asked, "What would happen to you if you did step afoul of this law?"

"That can result in the loss of your license," she replied. "And so, I would not only be unemployable at my school, but I would be unemployable anywhere."

"But what I don't understand is, this is New Hampshire, whose motto is, 'Live Free or Die'!"

"Yeah, yeah," Given laughed. "There's a lot of emphasis on the 'or die' part of late!"

UC Berkeley professor John Powell, an expert on civil liberties and democracy, said of the classroom prohibitions, "That's a very serious freedom of speech issue. To me, that is so far off the rail."

He's especially alarmed at the record number of books that are being banned in schools all over the country. Conservatives object to books about sex, gender issues, and racial injustice (such as Toni Morrison's "Beloved," Alex Gino's "George," and "The 1619 Project"), and liberals object to books containing outdated racial depictions (including John Steinbeck's "Of Mice and Men," Mark Twain's "The Adventures of Huckleberry Finn," and Harper Lee's "To Kill a Mockingbird").

• 10 Most Challenged Books Lists (American Library Association)
• Virginia school board officials suggest burning books banned from schools ("Red & Blue")

"You can't make the Holocaust a nice thing – it wasn't a nice thing!" Powell laughed. "You can't make slavery a nice thing. 'That makes people uncomfortable.' It should make people uncomfortable! The goal of education is not comfort. So, if someone really wants to challenge the Holocaust, let 'em challenge it. But don't ban a discussion on it."

In the mid-1800s, English philosopher John Stuart Mill proposed that governments limit free speech only when it would cause harm to others.

Powell said, "He wrote a book called 'On Liberty,' [about] freedom. And he was very concerned about the government silencing people, that citizens had to have the right to express themselves."

Our laws have generally followed that guideline. In the U.S., public speech can't include obscenity, defamation, death threats, incitement to violence – harms.

But Powell said that the recent restrictions have more to do with culture wars than with preventing harm: " I want to regulate that 'cause I don't like it. To me, that's wrong. That's problematic."

"So, there's a difference between saying something that makes you uncomfortable, and saying something that damages society or incites to riot?" asked Pogue.

"Right, and discomfort is not the same as an injury."

But these days, there are entire new categories of speech that can lead to harm. "Now, there's a concept of disinformation, where you deliberately engage in lies, in fact to cause harm, to cause injury, to exclude some people," said Powell. "But what it really means is our understanding of the First Amendment and our understanding of free speech is evolving. It has to evolve."

• A dozen anti-vaccine accounts are responsible for 65% of disinformation shared online, new report finds

It's probably no coincidence that the new censorship culture arose simultaneously with social networks like Facebook and Twitter.

"The First Amendment was conceived as a protection of citizens from restriction of expression by the government, and not by private companies or other entities," said Jillian York, the director for international freedom of expression at the Electronic Frontier Foundation, and author of "Silicon Values."

Pogue asked, "So for example, Donald Trump getting kicked off Twitter and Facebook ? Is that censorship? Is that bad censorship? Is that good censorship?"

"I think Trump getting kicked off of Facebook and Twitter is kind of complicated," York said. "But the thing that really concerns me the most is that someone like Mark Zuckerberg, whom none of us elected, has the power to remove an elected official. I think that should really worry us, even if we do feel that Trump should be silenced."

York said that the big tech companies censor our speech every day, sometimes by mistake, but always without supervision or transparency. "We saw protest content around Black Lives Matter removed on Facebook's platform, wrongfully," she said. "LGBTQ content has been removed. as well as things like art and satire."

• Faceoff against Facebook: Stopping the flow of misinformation ("Sunday Morning")
• Texas governor signs law prohibiting social media platforms from banning users
• Lawmakers vow stricter regulations on social media platforms to combat misinformation

According to Jacob Mchangama, social networks censor us in another way, too, by making us afraid to speak at all: "There was actually this survey from 2020 by the Cato Institute which showed that 62% of Americans self-censor, who are afraid to sort of express their political views on specific topics.

"It shows this paradox: Americans enjoy the strongest legal constitutional protection of free speech probably in world history. But they still fear the consequences of being fired for speaking out on certain political views. And that's not a healthy sign."

But it's not just America. Since 2019, at least 37 countries have passed laws that increase censorship (of individuals or the media), including in Europe, where Jillian York lives. "There's a lot of debate right now in Germany, for example, over a fairly recent law that restricts hate speech online," York said, "but also creates penalties for things like the country's insult law . So, you know, insulting someone online could be penalized financially."

Overall, it would be easy to get depressed by these attacks on free speech. Especially if you're a teacher, like Jennifer Given.

Pogue asked, "What's the end point for you, if this keeps going this way in New Hampshire?"

"I don't know," she laughed. "There is a point where you start going, 'Maybe I've had it.'"

But if it cheers you up any, Jacob Mchangama points out that we still enjoy more freedom of speech than most countries: "If we were having this discussion in Russia or Turkey, you know, someone would pick me up when I go down on the street, and you might not hear from me for a long time."

He said we should fight to maintain our freedom of civil discussion – and never take it for granted.

"I'm not saying that free speech is just great, and doesn't entail any consequences; it does," he said. "You know, we should think about, how do we mitigate misinformation? How can we ensure that we counter hate speech without compromising free speech?

"And, you know, it's an experiment. But I would argue that it's been a very beneficial experiment. And one which is very much worth continuing."

       For more info:

• "Free Speech: A History from Socrates to Social Media"  by Jacob Mchangama (Basic Books), in Hardcover, eBook and Audio formats, available via  Amazon  and  Indiebound
• Follow  Jacob Mchangama on Twitter
• John A. Powell, professor, University of California, Berkeley School of Law
• "Silicon Values: The Future of Free Speech Under Surveillance Capitalism"  by Jillian C. York (Verso), in Hardcover, eBook and Audio formats, available via  Amazon  and  Indiebound
• jilliancyork.com
• Electronic Frontier Foundation
• Jillian York photo: Nadine Barišić

       Story produced by Mark Hudspeth. Editor: Mike Levine.

        See also

• Censorship on social media? It's not what you think (CBS Reports)
• The psychology behind "cancel culture": Is it justice or censorship?

More from CBS News

Book excerpt: "Same As It Ever Was" by Claire Lombardo

Book excerpt: "Bear" by Julia Phillips

Book excerpt: "Godwin" by Joseph O'Neill

The Book Report: Washington Post critic Ron Charles (July 14)

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Acknowledgments

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

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

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Understanding hate speech

Hate speech versus freedom of speech

The need to preserve freedom of expression from censorship by States or private corporations’ is often invoked to counter efforts to regulate hateful expression, in particular online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as to peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable that digital media, including social media, have bolstered the right to seek, receive and impart information and ideas. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition.

To counter hate speech, the United Nations supports more positive speech and upholds respect for freedom of expression as the norm. Therefore, any restrictions must be an exception and seek to prevent harm and ensure equality or the public participation of all. Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action provides key guidance to States on the difference between freedom of expression and “incitement” (to discrimination, hostility and violence), which is prohibited under criminal law. Determining when the potential of harm is high enough to justify prohibiting speech is still the subject of much debate. But States can also use alternative tools – such as education and promoting counter-messages – to address the whole spectrum of hateful expression, both on and offline.

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General António Guterres, May 2019

Law and Crime

Should hate speech be free speech, on the legal distinction between hate crimes and hate speech..

Posted March 29, 2019 | Reviewed by Kaja Perina

In January this year, a federal grand jury added 13 federal hate crimes and six firearms offenses to the 44 federal counts previously levied against Robert Bowers, the gunman in the 2018 mass shooting in the Tree of Life synagogue in Pittsburgh.

The indictment reflects the United States’ official stance that a motive of group hatred is of a particularly malicious nature and, therefore, warrants punishing the perpetrator more severely than if the crime had been committed without the motive of group hatred. Prosecutors and judges rely on factors like the language used by the accused and the nature and severity of the attack to determine whether the attack was committed with a motive of group hatred.

Although the increased penalties provided by hate crime laws are motivated by considerations of retributive justice, protecting marginalized groups can also have deterrent and symbolic effects.

In the U.S. the benefits of protecting marginalized groups against hate crimes are thought to outweigh potential negative consequences, but this is not the official stance when it comes to hate speech.

U.S. Justices have deemed previous attempts to regulate hate speech unconstitutional on the grounds that hate speech laws infringe on the First and Fourteenth Amendments of the Constitution, which compel both state and federal government to protect the right to free speech. In recent cases, like Matal v. Tam , 582 U.S. ___ (2017), Supreme Court justices granted that hate speech is offensive, but maintain that imposing broad restrictions on offensive speech is unconstitutional.

The issue in Matal v. Tam (2017) was an anti- discrimination clause that prohibits the registration of trademarks that may “disparage” any “persons, living or dead, institutions, beliefs, or national symbols.” Pointing to the expressive function of trademarks, the Justices rejected the anti-discrimination clause as an unconstitutional restriction of viewpoints.

Although hate speech remains unregulated in the U.S., not all speech is constitutionally protected. Speech that remains unprotected by the First and Fourteenth Amendments includes fraud, perjury, blackmail, bribery, true threats, fighting words, child pornography and other forms of obscenity, speech of strong governmental interest, such as political commentary and unfair trade practices, and speech that isn’t of public interest, such as defamation and intimidation that occur in the context of a private dispute. But laws prohibiting these kinds of speech do not count as hate speech laws, because they do not offer special protection for marginalized groups.

Two recent cases can help shed light on the difference between hate crimes and hate speech. On January 21, 2019, a group of teens on bicycles, calling themselves “Bikes Up Guns Down,” were blocking traffic in downtown Miami in a protest of the lack of affordable housing in Liberty City. A passerby, Dana Scalione, who had gotten out of her SUV, started screaming at one of the teens and shoving his bicycle for allegedly having run over her foot with a bicycle. Scalione’s boyfriend Mark Allen Bartlett also jumped out of the car, aggressively approaching, wielding his gun and repeatedly hurling racial slurs at the kids.

A bystander called the police, who arrested Bartlett for carrying a concealed firearm without a permit, a third-degree felony.

The teens later filed a civil lawsuit, stating that Bartlett and Scalione violated Florida’s hate crimes statute and demanding a jury trial (Joseph v. Scalione, Filing #84113459, (Fl. 11th Cir. 2019)). The statute provides a cause of action for treble damages, which means that a court is permitted to triple the amount of monetary compensation to be awarded to a plaintiff.

On February 19, 2019, State Attorney Katherine Fernandez Rundle brought enhanced criminal charges against Bartlett, charging him with improper exhibition of a firearm, enhanced to a third-degree felony, and three counts of aggravated assault with prejudice, enhanced to second-degree felonies.

The Florida hate crimes statute provides increased minimum and maximum penalties for crimes based on the race, color, ancestry, ethnicity , religion, sexual orientation , national origin, homeless status, or advanced age of the victim. For example, Florida law increases a charge of improper exhibition of a firearm, a first-degree misdemeanor, to a third-degree felony. Although the law does not legislate against hate speech under that heading, the fact that Bartlett hurled racial slurs at the teens is not an irrelevant factor in how the suit is settled. It’s key evidence in establishing whether his threatening behavior constitutes a hate crime.

A second case that can help shed light on the distinction between hate crimes and hate speech is a federal court decision in November 2018 allowing a case against Andrew Anglin, the publisher of the neo-Nazi website Daily Stormer , to proceed to civil court.

Anglin encouraged his readers to harass Tanya Gersh, a Jewish realtor in Montana, after she became involved in a real-estate dispute with Sherry Spencer, the mother of white nationalist Richard Spencer, in the Montana town of Whitefish in 2016. “Hit Em Up[.] Are y'all ready for an old fashioned Troll Storm? […] Tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with,” Anglin wrote, according to the suit.

Gersh filed a civil complaint in the spring of 2017, after “she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards.” The suit makes claims under “Montana law for invasion of privacy, intentional infliction of emotional distress, and violations of the Anti-Intimidation Act.”

Anglin initially tried to get the lawsuit dismissed on First Amendment grounds. But in November 2018, U.S. District Judge Dana L. Christensen ruled that it could proceed, stating that Anglin’s call for harassment was not intended to inform the public about a matter of public concern, but was instead based on Anglin’s “personal hostilities”:

“[N]ot all speech is of equal First Amendment importance,” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous." Snyder, 562 U.S. at 452 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). This is so because the regulation of "speech on matters of purely private concern" does not "threat[ en] the free and robust debate of public issues" or "potential[ly] interfere[] with a meaningful dialogue of ideas." —Dun & Bradstreet, 472 U.S. at 760. ( Gersh v. Anglin 9:2017cv00050 (D. Mont. 2018)).

The Court added that “The ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Rankin v. McPherson, 483 U.S. 378, 387 (1987) […] Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh.”

Marc Randazza, who represents Anglin, told the media that the judge’s decision is “dangerous for free speech,” warning that it could be used to curtail free speech in other forums.

But this is not implied by anything in the Court’s opinion or decision. On the contrary, the Court explicitly stated that “The Court cannot find that Anglin' s speech is unprotected on the basis that it evinces a morally and factually indefensible worldview.” But, conversely, the Court also could not (and did not) find that Anglin's speech is entitled to special protection. Anglin’s attack on Gersh was personal in character and not fair comment of public concern. So, it isn’t entitled to special federal protection.

The upshot is that while there are exceptions to the constitutional protection of speech in the U.S., hate speech remains unregulated under that heading. But one wonders, is speech really all that different from physical violence, including threats of physical violence?

We know that words can injure. If a person verbally abuses you, their words are intended to cause you emotional harm. Verbal abuse is emotional violence, or assault.

Words can injure, because they are not always used to innocently describe how things are, but also to perform actions. We do things with words. Sometimes we warn people, sometimes we hurt them.

The actions we perform with words are called speech acts. When you make a promise, threaten, apologize , warn, demand, order, joke, tease, belittle, undermine, blame, criticize, humiliate, insult, degrade, and so on, you are using speech to perform an action.

Whenever you say something, you perform one or more speech acts. If you say, “There is a bull behind the fence,” you could be warning the listener not to enter the fenced area, or you could be making a promise, which you could also have expressed more explicitly by saying, “There is a bull behind the fence, I promise. I wouldn’t have made you walk this far if there wasn’t.”

“I promise that there is a bull behind the fence!” and “I am warning you not to enter!” are direct speech acts, because they make it explicit what the speaker is doing.

When you just say, “There is a bull behind the fence,” this is called an indirect speech act, because you are not explicitly saying what act you are performing with your words.

When you make an indirect speech act, you are doing one thing with your words that’s explicit, but at the same time you are doing something else that you haven’t explicitly mentioned. For example, you can use “I am telling you that there is a bull behind the fence” to inform (a direct speech act) and to issue a warning (an indirect speech act).

Verbal assault is a speech act that can be direct or indirect. If your fiancé tells you: “I demand that you quit your job now that we are married,” she is explicitly using her words to make a disrespectful demand in a direct way. If she says, “Call your boss right now!” she is not explicitly saying what speech act she is intending to make, but she could be intending to use her words to make an indirect threat.

Hate speech is verbal abuse that targets one or more people because of their group identity . The real motive behind all verbal abuse, regardless of its nature, is to retaliate against you, or to gain or retain control over you, or to prevent you from getting what you deserve.

Hate speech is no different. Hate speakers target representatives of a group or the whole group in order to retaliate against the group, gain or retain control over the group, or prevent them from getting what they deserve. But retaliation and oppression are morally wrong. So, it would seem that hate speech is morally wrong.

The law doesn’t prohibit all (or only) morally wrong acts, however. It only proscribes conduct that is threatening, injuring, or otherwise endangering to private property or people’s health or safety. So cheating on your boyfriend wouldn’t be legally prohibited, even though it might be morally wrong.

But if the law proscribes acts that are threatening, injuring, or otherwise endangering to private property or people’s health or safety, why doesn’t it automatically prohibit hate speech? Didn’t we just establish that hate speech injures people?

Not quite. A person who is verbally assaulted, perhaps repeatedly, does ordinarily suffer emotional harm, but the law tends to shy away from regulating emotionally harmful activities. This is because it is very hard to distinguish between emotional harm that is a direct result of an act and emotional harm that is merely indirect, or what is also known as a secondary injury. A secondary injury is trauma , depression , or other mental illness that occurs weeks, months, or years after the initial or primary injury, often brought about by a lack of a proper support system or re-stigmatization. Family members, partners, friends, police officers, prosecutors, judges, social workers, the media, coroners, clergy, and even mental health professionals can cause secondary injury, which makes attributing secondary injury to the person who caused the initial injury questionable.

Even when hate speech does not cause long-term emotional damage, it tends to be hurtful. So why don’t we simply conclude that hate speech is damaging, because it hurts people’s feelings? One problem with this suggestion is that hate speech doesn’t always hurt people’s feelings. A target who is unusually tough, didn’t hear what was said, or didn’t grasp what was conveyed might not get hurt.

There are other ways in which the law could classify hate speech as harmful, however. For example, as argued by law professor Jeremy Waldron, the harm of hate speech might be taken to lie in its defamatory nature.

I will look closer at this suggestion in a subsequent blog post.

Berit Brogaard, D.M.Sci., Ph.D. , is a professor of philosophy and the Director of the Brogaard Lab for Multisensory Research at the University of Miami.

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Freedom of Expression

FREEDOM OF EXPRESSION

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. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI — hardly ancient history — that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution’s framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish “any false, scandalous and malicious writing” against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

From then on, the right to freedom of expression grew more secure — until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the “clear and present danger” test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES “PROTECTED SPEECH” INCLUDE?

First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government’s interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of “national security” to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the “Pentagon Papers” by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country’s involvement in Vietnam, was leaked to the press. When the Times ignored the government’s demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through “prior restraint,” block publication of any material unless it could prove that it would “surely” result in “direct, immediate, and irreparable” harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government’s claims of “national security” must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called “fighting words … which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected. This decision was based on the fact that fighting words are of “slight social value as a step to truth.”
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished — only if the offended official can prove the falsehoods were published with “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.” Other kinds of “libelous statements” are also punishable.
• Legally “obscene” material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It’s the foundation of self-fulfillment. The right to express one’s thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself — and as such, deserves society’s greatest protection.

It’s vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one’s own conclusions against opposing views. Therefore, all points of view — even those that are “bad” or socially harmful — should be represented in society’s “marketplace of ideas.”

It’s necessary to our system of self-government and gives the American people a “checking function” against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual’s freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, Anchor Press, 1995.

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Head-To-Head: Should there be limits on freedom of speech?

By Comment Editor | Apr 3 2017

“Supporting limits to free speech in no way means you are anti-debate.”

  “How different, in terms of consequences, are the actions we conduct to the words we say?”

“Death threats, bomb threats and relentless online abuse that leads some to suicide are wildly hard to defend in the name of free speech.”

“After all, freedom of speech does not mean speech free from criticism or rebuttal”

“In truth, both sides want restriction on what opinions can be spoken”

“Our universities, and society at large, could learn a lot from examining Hegelian Dialectics”

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Debate: should free speech have limitations.

• October 5, 2017
• 29 Comments

PRO (Samm Stein):

Words are very powerful. They can be violent. We always hear “sticks and stones may break my bones, but words will never hurt me.” But words do hurt. Many people fall subject to verbal bullying. While we do have freedom of speech in the United States, there should be a limit on it.

One key example of how words are so powerful is the Constitution itself. Words are subjective. In order to help prevent any confusion, we rely on limitations of meanings. The way that the Supreme Court rules based on their interpretation of the Constitution is a limitation. There are constant limitations on free speech, whether we recognize it or not.

Hate speech, as mentioned in the opposing argument, is quite broad. It’s hard to say what is or isn’t hateful. Who gets to decide that? I believe that instead of putting a broad overarching limit on that, we should be able to self-regulate. We should learn to recognize what hate speech means in various contexts. For example, if we recognize that our speech is becoming slanderous or harmful to another person, it should be frowned upon.

Free speech relies on honesty, peacefulness and respect. I believe that everyone is entitled to their own opinion. This is the opinion section where we allow that freedom of speech to occur. However, a line must be drawn sometimes. For example, an opinion that promotes the idea of something such as the Holocaust or genocide where millions of people died in unacceptable. It threatens the safety and security of millions of more people. In an outlet meant to inform, we cannot allow for pure freedom of speech, unfortunately. Just as there are social boundaries (such as personal bubbles and customs on how to greet strangers), there need to be boundaries for speech.

It’s hard to say we need limitations. No one enjoys being told what they can and cannot do. But we need some restrictions to protect the safety and honor of the American people. There comes a time when the priority should be the safety of the citizens and if that means having to limit our freedom of speech, then so be it. It’s impossible to have pure freedom. Everything comes with a cost. Speech is no exception.

CON (Sam LaMarche):

The First Amendment states in part that Congress shall make no law “…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In this text, I can see no limitation of speech that would be consistent with the meaning of this amendment. Any limitation of speech would result in a direct contradiction of the statement above.

To further strengthen the legal case for unlimited free speech, I’ll refer to Article VI, Clause 2 of the Constitution, which states in part that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme law of the land.” So, not only does the First Amendment favor unlimited free speech, but it is part of a Constitution which is clearly placed as the ultimate legal authority of the United States. If there is any concern about free speech that would justify limitations, they only legal option would be to pass a constitutional amendment that revises the First Amendment. However, that is very difficult, since either two-thirds of Congress or two-thirds of state legislatures must approve the revision, which is a huge political hurdle.

However, legal arguments such as this are not convincing enough to most people, including myself. Legal arguments must be supported by a logical conclusion as to why the current law is justified. In this case, the consequences of limiting free speech are dire and well documented throughout human history. Limitations on the free exercise of speech promote the rise of authoritarian and repressive governments. The issue that arises with these proposals is that the meaning of political speech is almost entirely subjective. In other words, its meaning is subject to the interpretation of the listener. For example, if somebody says that they want to impose limits on immigration, one person may interpret it as a manifestation of racism, while another may interpret it simply as a proposed solution to economic stagnation.

Due to the subjective nature of speech, it is difficult to determine what kind of speech should be limited. This lack of clarity makes it very easy for an oppressive government to use speech limits to violate the natural rights of political minorities. This phenomenon holds, even for cases of hate speech. For anybody at MTU who supports suppression of hate speech, what defines hate speech? It is a very difficult question to answer exactly. Do you really want the government or the university to determine that answer for you? In conclusion, words are the manifestation of ideology. They are not violence. The best way to suppress speech that is deemed hateful is not to suppress it, but to counter it with better, more reasonable ideas.

29 Responses

I’m personally anti freedom of speech. Words are too often used by the strong to harm the weak and unkind words have lasting negative effects. I was bullied in school both verbally and physically but the bullies’ “freedom of speech” protected them from any consequences. As a result of the bullying, I engaged in multiple forms of self harm. Freedom of speech gives the strong the legal right to be cruel and permanently destroy the mental health of others. Many ppl defend ppls “right” to harm others and their “right” to state opinions that lead to violence and conflict. I think kindness should be mandatory and unkind words should be met with severe consequences.

i agree with this statement, freedom of speech should not be used to harm others-

I would agree but explain

I think that I do not like this article.

Should social media platforms allow users the right to use free speech to destroy the platform?

Who will decide what is allowed to be said and what is not? Some people genuinely believed that slavery was completely okay and had no problems with it. What if those people chose to say that anything against slavery is past your limit of free speech

tf does slavery have to do w/ this?

i am gay jk i am cool????

freedom of speech should have limitations because we should make sure we aren’t hurting others by their words. But it should not be entirely limited.

I think it is clear U DON’T USE YOUR FREEDOM TO HURT SOMEONE’S FEELINGS

umm i have freedom of speech so i should say what i want with no limitations.

While there are people who use their freedom of speech to provoke hate, there are many people that use it as a way to create peace and express their voice. Having this freedom to express one’s own voice, while also listening to other opinions makes us all consider each other’s perspective; even if one doesn’t fully agree. Although this process requires patience, it will eventually get us to where we want to be.

I spoke my mind

I think free speech should be limited to a certain extent and it is we can not use fighting words defamation fraud and threats I like what we already have.

Speech should have limitations to protect the innocent, but it should also have a vast amount of freedom to it so that people can have the opportunity to bring to light the issues no one wants to talk about but everyone needs to know. There needs to be a balance between a strong government and a strong people.

What do you mean by protect the innocent?

A speech should have limitations so that people don’t go yap yap yap yap yap and blabber out to their heart’s content.

this is useless

Free speech should have its limits. The ability to mentally harm someone is an act that should never be allowed. However, it is. Countries with free speech that have no regulations constantly raise awareness for cyberbullying and other forms of hate but that has never been enough. Recently, a former k-pop star, Sulli, had committed suicide due to cyberbullying. Fans all around the world had been demanding for limits with free speech that should be implemented in South Korea. This act, the Sulli Act, was promised to be discussed in the Korean National Assembly. I believe that if words can torture someone enough to take their own life, there should be a few sacrifices made. This should be the first step to the betterment of our grey society.

Although hate speech is allowed with free speech, it is the lesser of two evils. Most people do not believe in the Holocaust being a good thing, but that doesn’t mean someone should not be allowed to say that. Also, say that someone did say that, but it was in the context of a joke. That person is not using hate speech. This person may be using irony or satire in order to make a progressive message in the form of a joke. If that joke was to be written down it may be taken to heart, but nevertheless it was a joke, and the context on paper is different in that of a real world setting. Going back to the lesser of two evils. Limiting what we say as people limits the ideas we are allowed to share. Along with our ideas being limited, what is stopping someone from manipulating the way we think. After all, our words are formulated by thoughts. Soon after, our actions themselves may very well be controlled. We, as a people, should care for others. Watching what we say to certain people is important, but eliminating that choice could lead us down a dark road. Words are subjective, as stated in the article above, so something offensive to me may not be offensive to others and vice versa. If we limit what we say based upon people being hurt by words, anyone could argue any word in need of retiring. If someone is being direct in their words, and harmful intent stems from those words, then that is a time to step in and ask that person why they are being that way. However, if someone says something and somebody interprets what was said in a way that took offense, then who spoke those words shouldn’t be at fault. Words are subjective, but we need to be objective when determining the meaning of what was said before accusing someone or banning free speech entirely.

u just wrote my essay 4 me, kisses :33

No one in this world has the right to talk about others as it may hurt the inner soul feelings of others. The world is a place for everyone where they have the right to talk whatever they want to but it shouldn’t hurt others.

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The first amendment, interpretation & debate, freedom of speech and the press, matters of debate, common interpretation, fixing free speech, frontiers for free speech.

by Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School

by Eugene Volokh

Gary T. Schwartz Distinguished Professor of Law; Founder and Co-Author of "The Volokh Conspiracy" at Reason Magazine

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its content —that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Three issues involving the freedom of speech are most pressing for the future.

Money, Politics, and the First Amendment

The first pressing issue concerns the regulation of money in the political process. Put simply, the question is this: To what extent, and in what circumstances, can the government constitutionally restrict political expenditures and contributions in order to “improve” the democratic process?

In its initial encounters with this question, the Supreme Court held that political expenditures and contributions are “speech” within the meaning of the First Amendment because they are intended to facilitate political expression by political candidates and others. The Court also recognized, however, that political expenditures and contributions could be regulated consistent with the First Amendment if the government could demonstrate a sufficiently important justification. In Buckley v. Valeo (1976), for example, the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates in order to reduce the risk of undue influence, and in McConnell v. Federal Election Commission (2003), the Court held that the government could constitutionally limit the amount that corporations could spend in the political process in order to influence electoral outcomes.

In more recent cases, though, in a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions. Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014). As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.

Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.

Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.

The Meaning of “Low” Value Speech

The second pressing free speech issue concerns the scope of “low” value speech. In recent years, the Supreme Court has taken a narrow view of the low value concept, suggesting that, in order for a category of speech to fall within that concept, there has to have been a long history of government regulation of the category in question. This is true, for example, of such low value categories as defamation, obscenity, and threats. An important question for the future is whether the Court will adhere to this approach.

The primary justification for the Court’s insistence on a history of regulation is that this limits the discretion of the justices to pick-and-choose which categories of expression should be deemed to have only low First Amendment value. A secondary justification for the Court’s approach is that a history of regulation of a category of expression provides some basis in experience for evaluating the possible effects – and dangers – of declaring a new category of speech to have only low First Amendment value.

Why does this doctrine matter? To cite one illustration, under the Court’s current approach, so-called “hate speech” – speech that expressly denigrates individuals on the basis of such characteristics as race, religion, gender, national origin, and sexual orientation – does not constitute low value speech because it has not historically been subject to regulation. As a result, except in truly extraordinary circumstances, such expression cannot be regulated consistent with the First Amendment. Almost every other nation allows such expression to be regulated and, indeed, prohibited, on the theory that it does not further the values of free expression and is incompatible with other fundamental values of society.

Similarly, under the Court’s approach to low value speech it is unclear whether civil or criminal actions for “invasion of privacy” can be reconciled with the First Amendment. For example, can an individual be punished for distributing on the Internet “private” information about other persons without their consent? Suppose, for example, an individual posts naked photos of a former lover on the Internet. Is that speech protected by the First Amendment, or can it be restricted as a form of “low” value speech? This remains an unresolved question.

Leaks of Classified Information

The Supreme Court has held that the government cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security. New York Times v. United States (The “Pentagon Papers” case) (1971). At the same time, though, the Court has held that government employees who gain access to such classified information can be restricted in their unauthorized disclosure of that information. Snepp v. United States (1980). It remains an open question, however, whether a government employee who leaks information that discloses an unconstitutional, unlawful, or unwise classified program can be punished for doing so. This issue has been raised by a number of recent incidents, including the case of Edward Snowden. At some point in the future, the Court will have to decide whether and to what extent the actions of government leakers like Edward Snowden are protected by the First Amendment.

I like Professor Stone’s list of important issues. I think speech about elections, including speech that costs money, must remain protected, whether it’s published by individuals, nonprofit corporations, labor unions, media corporations, or nonmedia business corporations. (Direct contributions to candidates, as opposed to independent speech about them, can be restricted, as the Court has held.) And I think restrictions on “hate speech” should remain unconstitutional. But I agree these are likely to be heavily debated issues in the coming years. I’d like to add three more issues as well.

Professional-Client Speech

Many professionals serve their clients by speaking. Psychotherapists try to help their patients by talking with them. Doctors make diagnoses, offer predictions, and recommend treatments. Lawyers give legal advice; financial planners, financial advice. Some of these professionals also do things (such as prescribe drugs, perform surgeries, or file court documents that have legal effect). But much of what they do is speak.

Yet the law heavily regulates such speakers. It bars people from giving any legal, medical, psychiatric, or similar advice unless they first get licenses (which can take years and hundreds of thousands of dollars’ worth of education to get)—though the government couldn’t require a license for people to become journalists or authors. The law lets clients sue professionals for malpractice, arguing that the professionals’ opinions or predictions proved to be “unreasonable” and harmful, though similar lawsuits against newspapers or broadcasters would be unconstitutional.

And the law sometimes forbids or compels particular speech by these professionals. Some states ban psychiatrists from offering counseling aimed at changing young patients’ sexual orientation. Florida has restricted doctors’ questioning their patients about whether the patients own guns. Many states, hoping to persuade women not to get abortions, require doctors to say certain things or show certain things to women who are seeking abortions. The federal government has tried to punish doctors who recommend that their patients use medical marijuana (which is illegal under federal law, but which can be gotten in many states with the doctor’s recommendation).

When are these laws constitutional? Moreover, if there is a First Amendment exception that allows such regulations of professional-client speech, which professions does it cover? What about, for instance, tour guides, fortunetellers, veterinarians, or diet advisors? Courts are only beginning to confront the First Amendment implications of these sorts of restrictions, and the degree to which the government’s interest in protecting clients—and in preventing behavior that the government sees as harmful—can justify restricting professional-client speech.

Crime-Facilitating Speech

Some speech contains information that helps people commit crimes, or get away with committing crimes. Sometimes this is general information, for instance about how bombs are made, how locks can be picked, how deadly viruses can be created, how technological protections for copyrighted works can be easily evaded, or how a contract killer can get away with his crime.

Sometimes this is specific information, such as the names of crime witnesses that criminals might want to silence, the location of police officers whom criminals might want to avoid, or the names of undercover officers or CIA agents. Indeed, sometimes this can be as familiar as people flashing lights to alert drivers that a police officer is watching; people are occasionally prosecuted for this, because they are helping others get away with speeding.

Sometimes this speech is said specifically with the purpose of promoting crime—but sometimes it is said for other purposes: consider chemistry books that talk about explosives; newspaper articles that mention people’s names so the readers don’t feel anything is being concealed; or novels that accurately describe crimes just for entertainment. And sometimes it is said for political purposes, for instance when someone describes how easy it is to evade copyright law or proposed laws prohibiting 3-D printing of guns, in trying to explain why those laws need to be rejected.

Surprisingly, the Supreme Court has never explained when such speech can be restricted. The narrow incitement exception, which deals with speech that aims to persuade people to commit imminent crimes, is not a good fit for speech that, deliberately or not, informs people about how to commit crimes at some point in the future. This too is a field that the Supreme Court will likely have to address in coming decades.

“Hostile Environment Harassment” Rules

Finally, some government agencies, courts, and universities have reasoned that the government may restrict speech that sufficiently offends employees, students, or business patrons based on race, religion, sex, sexual orientation, and the like. Here’s how the theory goes: Laws ban discrimination based on such identity traits in employment, education, and public accommodations. And when speech is “severe or pervasive” enough to create a “hostile or offensive environment” based on those traits, such speech becomes a form of discrimination. Therefore, the argument goes, a wide range of speech—such as display of Confederate flags, unwanted religious proselytizing, speech sharply criticizing veterans, speech suggesting that Muslims are disloyal, display of sexually suggestive materials, sexually-themed humor, sex-based job titles (such as “foreman” or “draftsman”), and more—can lead to lawsuits.

Private employers are paying attention, and restricting such speech by their employees. Universities are enacting speech codes restricting such speech. Even speech in restaurants and other public places, whether put up by the business owner or said by patrons, can lead to liability for the owner. And this isn’t limited to offensive speech said to a particular person who doesn’t want to hear it. Even speech posted on the wall or overheard in the lunchroom can lead to liability, and would thus be suppressed by “hostile environment” law.

To be sure, private employers and business owners aren’t bound by the First Amendment, and are thus generally free to restrict such speech on their property. And even government employers and enterprises generally have broad latitude to control what is said on their property (setting aside public universities, which generally have much less such latitude). But here the government is pressuring all employers, universities, and businesses to impose speech codes, by threatening liability on those who don’t impose such codes. And that government pressure is subject to First Amendment scrutiny.

Some courts have rejected some applications of this “hostile environment” theory on First Amendment grounds; others have upheld other applications. This too is something the Supreme Court will have to consider.

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Youth debate: Freedom of speech: Are we allowed to say anything? 

In a democratic society, freedom of speech and expression is a must. However, it has been a debate whether we are allowed to say anything we want anytime. Supporters of freedom of speech argue that an individual has the ultimate right to say anything he wants while opponents believe there should be some restrictions. Our youngsters debate.  

Nishta Jooty: “Being free does not mean to do or say whatever we want”

Freedom of speech is one of our fundamental rights, says Nishta. “According to our Constitution, we have the freedom to express and hold opinions and to receive and impart ideas and information without interference. However, we should ensure that the reputation, rights and freedoms of other persons are protected as well as their private lives. Freedom of speech is, in fact, freedom from the government; that is, we have the right to express ourselves and have the government not punish us for it. The freedom of the press is a good example. The press should be able to run without censorship or restraint by the government.”

Nishta argues that as citizens, being free does not mean to do or say whatever we want. “It means to respect and accept what others are thinking about and to give our opinion in a respectful way. We cannot go into an office and use insulting, offensive words towards someone and expect to get away with it because of freedom of speech. Schools, universities, organisations, companies and even websites have rules and codes of conduct which should be respected by all citizens. Bullying and harassing people with words are not allowed, even if it is on the phone or online. We need to set limits to the freedom of speech so as to protect people from harm.”

For her, being able to voice out our opinions on issues comes with responsibilities. “We should choose our words carefully and ensure that nobody is hurt. We should be held accountable for anything we say or type. It is true that today people writing anonymously or under pseudonyms, on the Internet for example, are not held accountable for their words. Freedom of speech is very subjective. It depends on the country, on the culture, on the religious tolerance and on the ease which people can take it. An example is Charlie Hebdo where the attacks unfortunately led to the death of 12 men.”

Nasreen Fakeerbaccus: “There should be some limitations”

Freedom of speech is the right to express one’s opinions and ideas without any fear of government reprisal, censorship or form of punishments, believes Nasreen. “It is qualified as a Human Rights, under the Universal Declaration of Human Rights (UDHR) and classified in the International Human Rights Law in the International Covenant on Civil and Political Rights (ICCPR). As per the UDHR, everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression - this right shall include freedom to seek, receive and impart information and of all kinds of ideas, regardless of frontiers, through any type media.” 

She states that freedom of speech is considered to be fundamental in a state of democracy but should have some limitations as well. “Likewise, later on, the Article 19 has been amended accordingly stating that these rights carries special duties and responsibilities and be subjected of certain restrictions in terms of respect of the rights, reputation of others, the protection of national security, public order, public health and morals. In other words, to safeguard others rights and maintain the public order and the peace of a country.”

She further explains that freedom of speech is a means by which a Government has a feedback from its people of the way it is governing and handling the matter of the country. “Consequently, this could help in improving the country in various ways, such as taking the best decision in the interest of all citizens. In other words, the concept of democracy would be applied somehow, that is government of the people, by the people and for the people. But, there should be some limitations to safeguard other parties.” 

Vikish Rama: “Freedom of speech still a debatable issue”

Vikish Rama argues that the concept of freedom of speech has never been more debated than today.  “In this era, people share their point of view, they got their own opinions. Social media have been the platform for many people to start forums and discussions where this would connect many people to voice out their concerns. On these platforms the reactions of others cannot be controlled. Freedom of speech under law holds much respect and valuable arguments which nowadays any politician or social group would be playing blind. So is freedom of speech as powerful as it should be? Freedom of speech is also about people listening to the opposing views which co-exist to bring in a constructive equilibrium. The Right not to Say whatever you like is like respecting each other, how you would have wanted to be respected. ”

Asvin Adaya: “People have the right to speak and write openly”

Asvin argues that we live in a society where democracy is based profoundly on the right for people to express how they feel. “Freedom of speech is a basic human right in all free societies and it plays a vital role in the lives of people, especially from how a country’s ministers take decisions for society. In a society, people are very sensitive when their rights are being threatened. In every country we have a different culture that shapes the society and when the people are insecure, they become emotional and will fight to protect their rights. Sometimes, such disaccord may lead to social unrest, which as a result, can discrupt the economy. Our society is as such where freedom of speech should only be allowed according to certain norms and values.” He further adds thjat “freedom of speech is an essential aspect and it concerns every citizen. It is vital as it also concerns democracy. It secures the right to speak and write openly along with the ability to criticize any injustice.  In a way some argues with the fact that decisions cannot be made on the basis of how people feels. We live in a society where the economy should be positively active but not stagnant as we cannot please everyone at the same time. Thus, the policy makers (ministers) should educate the population and devise certain laws in order to fit the societal and economical context of the country.”

Pallavi Mattapullut:“Individuals must be responsible for their abuses” 

Pallavi believes that no one shall be intimidated on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.  “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.   Therefore the State would have to set limits on this hypothetical freedom.  A free and independent press, including online, is a pillar of vibrant societies. Yet, its future is in jeopardy. Press freedom is declining across the world, as surveillance of journalists and violations of the confidentiality of sources become more common. Reporters are often victims of government orders to shut down media websites or blogs in the name of national security or public order.  Journalists and their sources are taking enormous risks.”

She highlights that we should encourage the deployment of encryption to ensure trust online and to support the safety of journalists and the confidentiality of their sources. “Everyone has a role to play to make the Internet more trusted and secure. As we celebrate World Press Freedom Day, we must remember that rebuilding trust in the news is a complex and long process and we each have a role to play. Encryption can be one of the steps towards a brighter future for a free and independent press.” 

Rohish Ramjutton:“Freedom of speech is still the bloodline”

The right to freedom of speech and expression is one of the most precious rights which Mauritian citizens possess, states Rohish. “Ideas are constantly sought, received and imparted through media and since we belong to a modern society, the standards for free speech used by individuals on social networking sites are now able to catch up with all other forms of human interaction. People can’t be incited to violence, neither slandered (in speech), neither libeled (in writing). We are not allowed, today, to do things that would make any reasonable man punch us in the face. Limitation to restrain freedom of speech in certain circumstances are exercised with the sole purpose, against an individual’s will, to prevent harm to others. Hate speeches, racist comments, insulting vocabulary and obscene materials including pornography are banished from the population and are not justified by this freedom.” He further claims that Mauritians, being very conscious of their ethnic identities, inculcate values at a tender age so as not to venture in the restricted waters of freedom of speech. Nevertheless, freedom of speech is still the bloodline to our democracy and it is a principle worth defending to one’s dying breath.

Ashneema Seebun: “Words can hurt as well as heal” 

The most precious gift for human communication is speech, says Ashneema. “The skill to converse enables us to establish links across time and space, to understand different nations and cultures, to expand our knowledge both vertically and horizontally across the globe, to endorse the arts and sciences. Speech bridges the gaps between peoples, nations and even generations so as to put an end to old enmities, to reach agreements, to promote new partnerships. Speech allows human beings to communicate their thoughts and emotions. Words allow us to express our feelings, to record our experiences, to realise our ideas, to push outwards the frontiers of intellectual exploration. Words can move hearts, words can change perceptions, and words can set nations and peoples in powerful motion. Words are an essential part of the expression of our humanness. To limit freedom of speech and expression is to cripple the basic right to realise our full potential.” 

However, as highlighted by the lady, since historical times, it has been recognised that words can hurt as well as heal, that we have a responsibility to use our verbal skills in the right way. “By controlling or denying freedom of speech and expression, we take away a lot of potential. We take away thoughts and ideas before they even have the opportunity to hatch. We build a world around adversity where we cannot speak, think, or do what we really want. Freedom fighters ought to be freedom practitioners. The simple law for those who want to defend freedom of speech is that they must demonstrate their commitment by practising what they preach. When we speak out for our right to freedom of speech, we begin to exercise it. When we write about our right to freedom of expression, we begin to practise it. There can be no theoretical advocacy of these freedoms, there can only be practical, practicing advocacy.”

Nazleen Vadivelu: “Everyone should bear his own responsibility”

Freedom of expression is fundamental in a democracy, avers Nazleen. “In Mauritius it is guaranted under the Section 12 of the Constitution. It clearly states that: except with his own consent, no person shall be hindered in the enjoyment of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence. However, freedom of expression should consist of some restrictions, so as not disrupt the peace of a country. For instance racial allegations are prohibited in a multi-racial country like Mauritius. Thus, it is important for one before giving his or her opinion on any matter to realise its consequences and take his/her responsibilities before expressing anything.”

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17 Freedom of Speech Pros and Cons

When a person or a corporation has the right of the freedom of speech, then they are able to express any opinion without restraint or censorship. This approach to society is a democratic institution which dates back to the ancient Greek culture.

In the United States, the First Amendment guarantees the right to free speech for all people. Through this fundamental right, Americans have the freedom to protest, practice the religion they want, and express opinions without worrying about the government imprisoning them for criticism. It was adopted on December 15, 1971, as part of the Bill of Rights.

As with all modern democracies, even the United States places limits on this freedom. There are specific limits placed on this principle that dictate what people can or cannot say legally. The First Amendment does not specifically say what is or is not protected, but the Supreme Court has ruled that there are some forms which are not allowed.

Here are the freedom of speech pros and cons to consider with this element as part of a democratic society.

List of the Pros of Freedom of Speech

1. Freedom of speech protects each of us from the influence of special interests. When people have power, then they do whatever they can to retain it for as long as possible. That may include a change in the government’s constitution, a shift in a company’s Board of Directors, or the suppression of a minority group that threatens the way of life for the people involved. Having the freedom of speech reduces this power because it allows individuals to express criticism of those who are in power. There is no fear of losing personal freedom with this right because your opinion contributes to the overall conversation.

2. Freedom of speech eliminates compelled actions. When you have the freedom of speech, then the government cannot compel your actions in such a way that you are required to speak a specific message. You stay in control of what you say and how those words are expressed to the rest of society. Even if the government attempts to alter your words to their advantage, you will always have the opportunity to address the situation and correct the “mistakes” that others create in your work.

3. Freedom of speech promotes the free exchange of ideas. When a society operates in an area where free speech is given to all, then there is a more significant exchange of ideas that occur. It becomes almost impossible for those who are in power to suppress truths that they may not want to let out in the open. This process allows for progress to occur because people can learn from the experiences and perspectives of one another without worrying about the dogma of a “Big Brother” element in society, either corporate or government-based.

4. Freedom of speech can expose immoral or unlawful activities. When Edward Snowden decided to leak numerous state secrets to the press, he created an interesting question about the freedom of speech that we are still attempting to resolve in our society. Was such an action inflicting damage against the legitimate actions of the government? Or was the information he offered a way to bring light to actions that the government shouldn’t have been performing in the first place? It is tricky to find the line which exists when you must protect information or protect others. Having this right in society allows us to at least have that conversation.

5. Freedom of speech prevents the requirement to behave specific ways. Some people today might say that any speech which someone finds offensive should be banned. Imagine then that someone became offended by the mention of same-gender marriage – or the opposite, that they were offended by the mention of opposite-gender marriage. Freedom of speech allows people to make up their minds about what to share with others. Some people might be brazen with their approach, but that also means they might not have as many friends because of their attitude.

6. Freedom of speech advances knowledge for a society. When you have a chance to ask questions or share perspectives, then it creates more learning opportunities in society. This right makes it easier for all individuals to make a new discovery, suggest ideas, or exchange information freely without worrying about potential political consequences. Even if some of the ideas do not work after you get to try them, the process of testing contributes to the advancement of society as well. Thomas Edison famously made 1,000 unsuccessful attempts at the invention of the light bulb – each idea was a new step toward success.

7. Freedom of speech allows for peaceful changes in society. Some people use their freedom of speech as a way to incite hatred or violence. Others use it as a way to create the potential for peaceful change. Providing facts to individuals while sharing your opinion can persuade them to consider your perspective, even if they do not agree with it at the time. When this is your top priority with this right, then you are less likely as an individual to use violence as a way to create change. Although this process requires patience from all of us to be successful, it will usually get us to where we want to be.

8. Freedom of speech gives us an opportunity to challenge hate. Peter Tatchell is a human-rights activist who suggests that the best way to move forward as a society is to challenge the people who have differing views. He told Index in 2016 this: “Free speech does not mean giving bigots a free pass. It includes the right and moral imperative to challenge, oppose, and protest bigoted views. Bad ideas are most effectively defeated by good ideas, backed by ethics and reason, rather than bans and censorship.

9. Freedom of speech creates resiliency. Although exposing people to hate speech is hurtful and creates fear in some individuals, it also creates a resiliency in the debate. Instead of making your voice louder when confronting these ideas, you are improving your argument. When this action occurs, the action of observation and counter-observation make it possible to create an outcome where progress toward the greater good occurs. When we lack tolerance for differing, uncomfortable opinions, then it weakens the rights that so many people take for granted when there is something that they want to say.

List of the Cons of Freedom of Speech

1. Freedom of speech does not mean the freedom to have “all” speech. The concept behind the freedom of speech is that you should be able to express anything in a way that does not create legal consequences for you. Even if your opinion is unsavory, rude, or unpopular, this right gives you the option to express it. In the United States, there are four forms of speech which are not protected under the First Amendment.

• You cannot make an authentic threat against another individual. • It is illegal to defame others, including libel and slander. • You cannot plagiarize any copyrighted material. • It is illegal to share some obscene material, such as child pornography.

If you say something in the United States which insights illegal actions or solicit others to commit a crime, then your speech is not protected by the First Amendment either.

2. Freedom of speech can spread false information. Thanks to the rise of the Internet, the freedom of speech makes it easier for individuals to spread false information and outright lies, but then still pretend that this data is true. Research does not prove that vaccinations increase the risk of autism in children, but you will find “information” online that says this is true. Even though it is protected speech when this right is present, it could also lead to people getting or transmitting a preventable disease. In 2019, over 60 people in Washington and Oregon contracted the measles, with almost all of the cases being unvaccinated children.

3. Freedom of speech can incite violence against other people. People must be held responsible for the personal choices that they make. When someone commits an act of violence against another because they were incited by hate speech to do so, then they made the choice to break the law. The person who created the outcome through the encouragement of their language holds some responsibility here as well. If online radicalization causes people to join ISIS, then shouldn’t political radicalization that causes individuals to attack journalists be treated in the same way?

4. Freedom of speech creates a paradox. When we look at the modern idea that creates the foundation for freedom of speech, it really isn’t free. The government is still dictating some of the things that we can or cannot say. This freedom, and this writer, cannot exist if people are not allowed to make assertions that are distasteful to the majority, even if the statements are hurtful to other people.

5. Freedom of speech can create a mob mentality. In 2012, Oatmeal and FunnyJunk had a dust-up over the use of images that author Matthew Inman did not authorize for distribution. Charles Carreon made a public splash as the attorney for FunnyJunk, which created a back-and-forth which eventually led the Internet to turn against him. In return for those actions, Carreon labeled everyone he thought of as an “instigator” as a “rapeutationist.” When one person offers an opinion that others find to be believable, it creates a mob mentality on both sides of the equation. When this happens, it can destroy a person’s livelihood quickly.

6. Freedom of speech can cause people to endure verbal abuse. Voltaire’s biographer summed up the views of the philosopher like this: “I don’t agree with what you say, but I will defend to the death your right to say it.” When freedom of speech is treated this way, then it creates a situation where people must endure sexist or racist verbal abuse. Is it really beneficial for society to allow individuals to use derogatory terms for the purpose of causing discomfort?

We already know that there can be poor health outcomes associated with the fear of violence and crime. Dr. Erin Grinshteyn of UCSF conduced an online survey platform that asked students to rate their fear of experiencing 11 different crimes that included physical assault, hate speech, vandalism, and microaggressions among others. Her findings showed that students in racial minority groups feared violence more than Caucasians. Ongoing fear is a risk factor for mental health declines as well.

7. Freedom of speech will eventually polarize society. When people are allowed to express their opinions freely, then it creates three primary outcomes. Some people will agree with the statement, others will disagree, and a middle group won’t care one way or the other. People tend to hang out in circles where others think and feel in similar ways, which means they will gather around like-minded individuals to spend most of their time.

Pew Research found as early as 2014 that 92% of Republicans are to the political right of the median Democrat, while 94% of Democrats were to the left of the median Republican. 36% of GOP supporters even felt that members of the opposite party were a threat to the wellbeing of the country. When there are ideological silos created from free speech, it eventually polarizes society into groups that struggle to get along with each other.

28% of people say that it is important to them to live in a place where most others share their political views. For people who label themselves as “consistently conservative,” that figure rises to 50%, and 63% of that same group says that most of their close friends share their political views.

8. Freedom of speech reduces the desire to compromise. Pew Research also discovered that when people are consistently liberal or conservative with their freedom of speech, their idea of what compromise entails begins to shift. Instead of believing that both sides must have a give-and-take to create an outcome, the definition becomes one in which their side gets what they want while the other side gets as little as possible. This perspective makes it a challenge for society to function because those on each extreme are consistently battling the other extreme because each views themselves as being the superior contributor to society.

A Final Thought on the Pros and Cons of Freedom of Speech

The pros and cons of freedom of speech suggest that there should be some limits in place for the general good of society. Allowing people to say or do whatever they want at any time increases the risk for harm. Do we really want to live in a world where the creation and distribution of child pornography is a protected right?

Once we start deciding “good” and “bad” speech, it opens the door for abuses to occur. That is why the Supreme Court in the United States has worked hard for over 200 years to create rigid definitions of what is helpful and what is harmful. The goal is to allow people to express contrary opinions without the threat of legal reprisal. This structure promotes an exchange of ideas, which then encourages the learning processes for everyone.

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Guest Essay

The First Amendment Is Out of Control

Mr. Wu is a law professor at Columbia who writes often about Big Tech. He served on the National Economic Council as a special assistant to the president for competition and tech policy from 2021 to 2023.

The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press. For much of American history, First Amendment cases involving speech typically concerned political dissenters, religious outcasts, intrepid journalists and others whose ability to express their views was threatened by a powerful and sometimes overbearing state. The First Amendment was a tool that helped the underdog.

But sometime in this century the judiciary lost the plot. Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests. Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment.

Monday’s Supreme Court decision in the two NetChoice cases greatly adds to the problem. The cases concern two state laws, one in Florida and one in Texas, that limit the ability of social media platforms to remove or moderate content. (Both laws were enacted in response to the perceived censorship of political conservatives.) While the Supreme Court remanded both cases to lower courts for further factual development, the court nonetheless went out of its way to state that the millions of algorithmic decisions made every day by social media platforms are protected by the First Amendment. It did so by blithely assuming that those algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.

Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the court’s reasoning should serve as a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control. It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.

How did we get here? The reach of the First Amendment started to expand in the 1960s and ’70s, when the Supreme Court issued a series of rulings that held that the First Amendment concerned not just political and religious speech but also other forms of expression (such as sexual content ) and commercial communication (such as advertisements ). These initial changes to the scope of the First Amendment were reasonable.

Over the past decade or two, however, liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called speech, regardless of its value or whether the speaker is a human or a corporation. It has come to protect corporate donations to political campaigns (Citizens United v. Federal Election Commission in 2010), the buying and tracking of data (Sorrell v. IMS Health in 2011), even outright lies (United States v. Alvarez in 2012). As a result, it has become harder for the government to protect its citizens.

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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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• Constitution
• Free speech
• Fundamental Right

Limitations to the right of freedom of speech and expression

This article has been written by Manya Dudeja , a student of the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. This article deals with the freedom of speech and expression and its boundaries. 

Table of Contents

Introduction

Lisa : I posted my opinion online which is completely justified. I have been granted this right by the Constitution itself. This is my freedom of speech and expression.

Police Officer : Your freedom of speech and expression is not absolute. What you posted online is seditious. We have a right to detain you. 

Article 19(1)(a) of the Indian Constitution guarantees to all citizens, the right to freedom of speech and expression. The Preamble to the Indian Constitution also provides to its citizens, the liberty of thought and expression. However, this right is not an absolute one and Article 19(2) lists down the restrictions that can be imposed on the exercise of this right. 

The freedom of speech and expression has been granted universal acknowledgment and has been understood to be of fundamental importance for democratic systems. Article 19 of the Universal  Declaration of Human Rights (UDHR) also says that everyone has the right to freedom of opinion and expression. Besides, Article 19(2) of the International Covenant on Civil and Political Rights grants everyone the right to freedom of speech and expression. India has also ratified these international declarations and hence holds high regard for this essential freedom of its citizens. 

This article will discuss the importance and need of the freedom of speech and expression in a democracy and look at some of its facets. To look at the scope of this right, the various laws that restrict it will also be studied to protect the State’s security

Importance and need of freedom of speech and expression

The importance and need of the freedom of speech and expression can be understood from the following:

• In a democracy, the freedom of speech and expression is one of the prime liberties granted to the citizens. It forms a foundation for other rights granted to citizens, such as the freedom of the press. Freedom of the press, in turn, helps in inculcating a better-informed public and electorate. 
• It ensures that citizens can express their opinions freely and also hold their political leaders accountable. Also, this freedom ensures that important information is legally shared and circulated among citizens. 
• It also provides a platform to make the marginalized and minority voices heard. Issues that concern these groups can be highlighted and brought to the forefront by using the right to freedom of speech and expression.
• The freedom of speech and expression protects the creative license of artists and allows them to develop and share ideas freely. These can be academic writings, satirical work, theatre, cartoons,  visual arts, and stand-up comedies.

Sedition vs. right to free speech and expression

Section 124A of the Indian Penal Code penalizes anyone who by words, either spoken or written or by visible representation or by otherwise attempts to bring disaffection, hatred, or contempt against the government established by law. The colonial-era law of sedition has been widely criticized for serving as a restriction on free speech and expression. Even though the explanations to the section make it clear that only attempts to excite hatred, contempt, or disaffection lead to sedition and lawful criticism with a view of obtaining change does not amount to sedition, the law has been widely abused. For an act to amount to sedition, there must be an intention to cause public disorder or disturbance and hinder public peace. The Supreme Court in the case of Kedarnath Singh v. State of Bihar put a limit on the scope of Section 124A, whereby only the individuals using free speech and expression to incite violence and disrupt the law can be penalized. In the case of Shreya Singhal v. Union of India , the court emphasized that there has to be a degree of proximity between the words spoken or expressed and the public disorder that takes place. However, in reality, there has been a continued trend where charges of sedition have been pressed against individuals for criticizing the government. Due to this abuse of the law, demands have been made to abolish the Section to protect the sanctity of free speech and expression.

Recently in a petition against the sedition case filed against the Senior journalist, Vinod Dua, Vinod Dua v. Union of India , the Supreme Court upheld his journalistic freedom and said that every journalist is entitled to protection and the sedition law has to be applied as provided in the Kedarnath judgment. A BJP leader in Himachal Pradesh had filed an FIR against Vinod Dua for criticising the Prime Minister and the Union government on his Youtube channel. The court quashed the FIR.

Hate speech and the freedom of speech and expression

Hate speech poses a challenge to the right to freedom of speech and expression. In contemporary times, it is often used as a tool to gain popularity. It manifests itself into a form that creates divisions in society by attempting to belittle specific groups of people based on their religion, culture, ethnicity, race, gender, sexual orientation, disability, language, occupation, ideology, appearance, etc. It runs contrary to the objective of the fundamental right to free speech and expression that is to liberate people from all strata of society. Hate speech often relies on and perpetuates stereotypes. Hate speech has been seen to be used post-elections to cause anti-minority incitement and is often related to the politics of violence and hatred.

The Constitution of India by law seeks to prevent the delivery of hate speech under the garb of free speech and expression. It prohibits expressions that can be insulting to others. According to Article 51A (h) of the Indian Constitution, citizens must develop scientific temper, humanism, and the spirit of inquiry and reform. Various criminal laws in India also penalize hate speech. In the case of Dr Das Rao Deshmukh v. Kamal Kishore Nanasaheb Kadam , the appellant sought votes by using a poster that said: “teach a lesson to Muslims”. The Supreme Court held that the poster cannot be justified as it threatens to arouse communal feelings and create disharmony between the communities. It was offensive and went against the secular structure of the country.

Facets of free speech

Freedom of press.

The freedom of speech and expression as under Article 19 also includes the freedom of the press. During the Constituent Assembly Debates ,  Damodar S. Seth argued that freedom of the press should be explicitly included in the Article due to the present age where the press holds immense value. However, it was decided that a separate provision for the same is not required.

Right to Silence

The citizens’ right to stay silent has also been considered a part of the right to freedom of speech and expression. In the case of Bijoe Emmanuel & Ors. v. the State of Kerala , the court upheld the petitioner’s right to stay silent during the national anthem.

Right to report and broadcast

Under the freedom of speech and expression, citizens possess the right to circulate and publish content. It also includes the right to broadcast information. They also have the right to report proceedings of a court of law, this also ensures transparency. 

The right to be informed

A citizen’s right to know, receive, and impart information as a part of their right to information has also been recognized as a part of the freedom of speech and expression. In the judgment of the Union of India v. the Association of Democratic Reforms , the court held that the voters’ have the right to know about candidates.

Limits to freedom of speech and expression

The right to freedom of speech and expression is not absolute and has been reasonably restricted by the Constitution of India under Article 19(2). The grounds for imposing these restrictions are:

Sovereignty and Integrity of India

India gained its sovereignty after 200 years of colonial rule and established itself as an independent state wholly responsible for its internal affairs. Hence, citizens have been restricted to make statements that can harm this hard-earned sovereignty and hurt the integrity of the nation. This ground was added in 1963 through the Constitution (Sixteenth Amendment) Act to impose restrictions on individuals or groups that were instigating secessionist movements in the country. 

Security of the State

The government has the right to deny the freedom of speech and expression to protect the security of the State. However, the threats against security must be an aggravated threat to public order, such as rebellion, insurrection, waging war against the State, etc.  

To maintain friendly relations with foreign states

In a globalized world with unequal power relations, maintaining positive relations with neighbouring countries and other countries is significant. Hence, if a person’s freedom of speech and expression threatens to hinder these relations or harms the country’s international relations, it can be restricted. This is essential to curb malicious actions by some to jeopardize the reputation of the country.

Decency and Morality

One’s speech and expression must be decent and moral. It should not go against the morals of contemporary society. Restrictions on freedom of speech and expression imposed in the interest of decency and morality can be found in Section 292 to Section 294 of the Indian Penal Code, they deal with content that is deemed to be obscene. However, it must be noted that standards of decency and morality evolve and change along with society and are not static. The Hicklin test which originated in England is one of the tests to determine the decency or morality of a publication by checking its effect on the most vulnerable members of society. 

Contempt of Court

The judiciary holds great value in a democracy and hence to maintain its stature and preserve public trust in the institution, free speech and expression can be curbed. This is important to ensure that the courts are not vandalized or jeopardized. Contempt of Court is punishable under Article 129 and Article 215 of the Constitution by the Supreme Court and High Courts respectively.

Defamation is a criminal offence under Section 499 of IPC. The right to freedom of speech and expression is not an ultimate license to defame another person and hinder their reputation. Hence, the right to free speech and expression does not provide anyone with the immunity to tarnish another person’s reputation in society. If defamation is committed in the form of spoken words, it is called slander, if the same is committed in a permanent form, written or printed, it is called libel.

In the case of Subramanian Swamy v. Union of India , the validity of Section 499 and Section 502 of IPC were challenged. While upholding the validity of these provisions, the court stated that to protect the freedom of speech and expression, the reputation of individuals cannot be “allowed to be sullied. It asserted that the right to freedom of speech and expression is not absolute and has to follow a social interest. It also said that the right to reputation is included under the right to life, granted by Article 21 of the Constitution.

“ To suppress free speech is a double wrong. It violates the right of the speaker, as well as those of the hearer.” 

– Frederick Douglass

While the right to freedom of speech and expression is sacred to individual autonomy, liberty, and democracy in the contemporary world, it cannot be absolute and indisputable. With rights come responsibilities and hence it is the responsibility of the citizens to make judicious use of their rights and use it for the right reasons. This will help protect the spirit of the right. It has often been questioned as to how far the right to freedom and expression be allowed and where one needs to draw the line to one’s liberty. We have heard the principle that one’s right and freedom should not serve as another’s hindrance and inconvenience. Our right is absolute only until it does not disturb our neighbour. Hence, we can exercise our right to freedom of speech and expression as long as it is not hateful and defamatory to another person or it incites violence in the country. Criticism is not just allowed but is welcomed in a democracy, to strive to qualitatively improve our laws, criticism is necessary. But, this criticism must be fair and should not act as a double-edged sword that aims to express and create distress in the country. Due to the nature of this right, some degree of subjectivity will always exist, yet it is hoped that the article was able to make clear some boundaries of the freedom of speech and expression.

• Sedition and the Right to Freedom of Speech and Expression by Ananya Kuthiala
• Hate Speech and Freedom of Expression: Balancing Social Good and Individual Liberty by M.K. Bhandari and Mithilesh Narayan Bhatt
• http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf
• http://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.html
• https://www.probono-india.in/blog-detail.php?id=159
• https://www.lawctopus.com/academike/freedom-of-speech-and-expression/
• https://10years.mediadefence.org/10-reasons-freedom-of-expression/#:~:text=Freedom%20of%20expression%20is%20a%20core%20value%20in%20the%20democratic,others%2C%20without%20censorship%20or%20reprisals .
• https://lexforti.com/legal-news/freedom-of-speech-and-expression/

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Oversight Board Case of Violence Against Women

Closed Expands Expression

• Key details

Key Details

• Mode of Expression Electronic / Internet-based Communication
• Date of Decision July 12, 2023
• Outcome Oversight Board Decision, Overturned Meta’s initial decision
• Case Number 2023-002-IG-UA & 2023-005-IG-UA
• Region & Country Sweden, Europe and Central Asia
• Judicial Body Oversight Board
• Type of Law International/Regional Human Rights Law, Meta's content policies
• Themes Digital Rights, Instagram Community Guidelines, Hate Speech, Bullying and Abuse
• Tags Oversight Board Content Policy Recommendation, Oversight Board Enforcement Recommendation, Oversight Board Transparency Recommendation, gender-based violence, Social Media

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Case Analysis

Case summary and outcome.

The Oversight Board overturned Meta’s decisions to remove two Instagram posts condemning and raising awareness about gender-based violence. Meta originally removed the contents because they violated, according to the company, its Hate Speech policy. The first post included a statement that was characterized by two at-scale reviewers as an unqualified behavioral statement and the second post included a statement deemed as an expression of contempt against men. The Board found both posts did not violate the aforementioned policy as they aimed to raise awareness about violence against women and did not promote offline harm or create an environment of discrimination against men. The Board also decided that the posts aligned with Meta’s value of “Voice” as they sought to raise awareness. Additionally, the Board concluded that the removal of the posts was inconsistent with Meta’s human rights responsibilities as the measure didn’t meet the requirements of legality, necessity, or proportionality. The Board recommended Meta modify its policies to include an exception that allows content raising awareness about gender-based violence.

*The   Oversight Board   is a separate entity from Meta and will provide its independent judgment on both individual cases and questions of policy. Both the Board and its administration are funded by an independent trust. The Board has the authority to decide whether Facebook and Instagram should allow or remove content. These decisions are binding, unless implementing them could violate the law. The Board can also choose to issue recommendations on the company’s content policies.

An Instagram user in Sweden posted a video with Swedish audio, and its transcription, depicting a woman explaining her experience in a violent relationship—without providing any graphic details of the violence she endured. The video was accompanied by a caption that highlighted victim-blaming in gender-based violence and provided a helpline for victims. The caption also mentioned the International Day for the Elimination of Violence against Women to show support for women. Further, the caption also said, “men murder, rape and abuse women mentally and physically – all the time, every day.” The post was viewed 10,000 times.

After a Meta classifier identified the content to be potentially violating of Meta’s Hate Speech policy, two reviewers removed the post and gave the user a strike. After the decision was appealed by the user, it was automatically sent to a High Impact False Positive Override (HIPO) channel which is tasked with identifying wrongfully removed content. The content was sent to the same human reviewers who had initially examined it and the decision was upheld. In total, those two human reviewers examined the content seven times and found it violating each time. After the Oversight Board selected this case, Meta determined the removal was an error and restored the content. The strike was removed as well.

While assessing the first post, the Board received another appeal from the same user. The second appeal concerned an Instagram video of a woman speaking Swedish and saying that although she was a man-hater, she didn’t hate all men and that her feelings of hatred stemmed from fear of violence. She further compared men who committed violence against women to venomous snakes. In the video’s caption, the user asked men who were “allies” to help women in their struggles. The post was viewed 150,000 times.

Meta removed the aforementioned post arguing that it violated its Hate Speech policy and applied a strike to the account—preventing it from creating live videos. The user appealed this decision. Meta upheld the removal which led the user to appeal to the Board for the second time.

Decision Overview

The main issue before the Oversight Board was whether Meta’s removal of two posts discussing gender-based violence against women—using harsh language against men—abided by the company’s Hate Speech policy, values, and responsibilities under international human rights law.

In their first appeal, the user submitted that the removal of their post hindered an important discussion about domestic violence and that their intention was solely to show women who faced domestic violence that they were not alone. In the second appeal, the user highlighted that the goal of their post was to discuss the problem of violence against women, as perpetrated by men, and not to spread hatred against them.

Meta argued that the first decision was an error since the post did not violate its Hate Speech policy—as the full context of the post made the sentence “men murder, rape and abuse women mentally and physically – all the time, every day” a “qualified behavioral statement”. Meta reached this later decision by considering several factors such as the reference to the International Day for the Elimination of Violence Against Women and to helplines and experiences of gender-based violence. All those factors showed that the user intended to raise awareness which should have allowed the content to stay on Instagram.

Meta further clarified that “its policies generally do not grant reviewers discretion to consider intent” [p. 10] to ensure consistent and fair enforcement of its rules, and avoid bias, especially in cases of hate speech.

Regarding the second post, the company reasoned that it contained an expression of hatred towards men which violated its Hate Speech policy. Meta noted that the content might have violated other elements of the policy; however, the removal decision was made based on the expression where the user described themself as a man-hater.

The Board asked Meta 14 questions in writing about the criteria, internal guidelines, and automated processes for distinguishing qualified and unqualified behavioral statements; how the accumulation of strikes impacts users on Instagram; internal escalation guidelines for at-scale reviewers; and how at-scale reviewers evaluate context, intent, and the accuracy of statements. Meta answered all the questions.

• Compliance with Meta’s content policies and values

1. Content Rules

The Board concluded that the first post did not violate any of Meta’s content policies. The Board further stated that while the statement “men murder, rape and abuse women mentally and physically – all the time, every day” might be understood in many ways, it constituted a qualified behavioral statement as the post was not a generalization about all men and helped reassure women who were victims of gender-based violence. As noted by the Board, qualified behavioral statements “use statistics, reference individuals, or describe direct experience […] unqualified behavioral statements [on the contrary] ‘explicitly attribute a behavior to all or a majority of people defined by a protected characteristic.’” [p. 8]

The Board’s argument was further supported by the fact that the user referred to the International Day for the Elimination of Violence Against Women and included information about local support organizations. Within this context, the Board concluded that the first post was a non-violating qualified statement.

Some of the Board members also relied on the global context of violence against women in their analysis. They decided that the content raised awareness about a worldwide issue and was not a generalization about men. However, other members disagreed to consider the global context, worrying that such broad and contested considerations might cause controversial interpretations of the meaning of hate speech. The majority of the Board did not consider the societal phenomenon of violence against women, and the debate around its roots, in their decision that the statement amounted to a qualified behavioral statement.

The Board found that the second post did not violate Meta’s content policies. Upon examining the second post as a whole, the Board concluded that it was not an expression of contempt. The Board further decided that while the user described themself as a “man-hater”, they made it clear that they did not hate all men. They said their hate stemmed from fear and was a way to condemn violence against women rather than an expression of hatred towards men. The Board considered the venomous snakes’ analogy to be another indicator—even when most snakes are harmless, however, the fear of venomous snakes brushes off onto all snakes, as the user explained. Some of the Board members disagreed with that argument and considered the second post as an expression of contempt that violated Meta’s policies. A subset of those members believed the post should not be restored at all.

The Board considered that the second post was more complex than the first one. The first post, according to the Board, could have been easily recognized as a qualified behavioral statement while the second post required a nuanced analysis of the content as a whole. Ultimately, the Board concluded that the post, in light of its context, condemned violence against women. Thus, the majority of the Board decided to restore it.

The Board further agreed that the posts did not promote offline violence. Hence it couldn’t be said that they violated the Hate Speech policy rationale. The Board found the posts fell within Meta’s value of “Voice”, as they aimed to decrease offline violence against women. Therefore, the Board held that removing the posts was inconsistent with Meta’s values.

2. Enforcement action

Upon analyzing Meta’s decisions, the Board considered that the company’s appeal process—where the same two reviewers reviewed the same content seven different times— meant that they reviewed their own decisions rather than using different reviewers. The Board expressed its concern regarding the effectiveness of the appeal process and the HIPO reviews in light of the current approach. The Board recalled the Wampum belt  case to reiterate its concerns regarding Meta’s review and appeal system and its accuracy.

The Board further stressed that there was too much pressure on at-scale reviewers to assess complex content, requiring nuanced analysis, in a short time—often mere seconds. The Board underscored its concern about the limited resources available to moderators and their capacity to prevent mistakes, by referencing the cases of Wampum belt and Two buttons meme .

3. Transparency

The Board welcomed Meta’s implementation of the Board’s recommendations to clarify and modify its strikes and penalty systems. However, it highlighted that Meta did not provide information about the consequences of Instagram strikes to its users in its Transparency Center. While Meta shared some information about the penalties imposed on Instagram accounts that accumulate strikes in an Instagram Help Center article, the Board deemed it less accessible and not comprehensive as it didn’t mention all the penalties.

• Compliance with Meta’s human rights responsibilities

As part of its analysis, the Board considered whether Meta’s actions fulfilled its human rights responsibilities, especially towards the right to freedom of expression. The Board relied on the United Nations Guiding Principles on Business and Human Rights to understand Meta’s responsibilities, and on the International Covenant on Civil and Political Rights (ICCPR) to analyze whether those responsibilities were fulfilled.

The Board emphasized the importance of the internet as a tool for women to express themselves and talk about their struggles, including gender-based violence. Moreover, the Board stressed that unlawfully restricting speech raising awareness about gender-based violence would lead to hindering the eradication of violence against women.

In order to assess whether Meta lawfully restricted the user’s freedom of expression, the Board implemented the three-part test, provided for in Article 19 of the ICCPR, which analyzes the legality, legitimate aim, and the necessity and proportionality of the restrictions.

1. Legality (clarity and accessibility of the rules)

The principle of legality, the Board noted, requires rules limiting expression to be clear and publicly accessible to provide guidance for those who apply them. The Board found that Meta’s approach when enforcing its Hate Speech policy failed to fulfill the principle of legality. Even though the Hate Speech Policy allows expressions raising awareness of gender-based violence, the Board determined that there was no guidance in the public-facing policy and internal guideline documents ensuring that such posts would not be removed mistakenly.

Regarding the first post, the Board noted that Tier 1 hate speech rules of qualification were applied. As the Board mentioned, when it notified the case to Meta, the company used contextual analysis to backtrack its original decision; however, such analysis was not available to the reviewers—preventing them from ever reaching the right decision even when there were clear cues within the content about its aims regarding gender-based violence.

Considering that Meta informed the Board that the internal guidelines instruct reviewers to default to removing behavioral statements in cases where it’s unclear whether the statement is qualified or not—as it is challenging to determine intent—the Board underscored its concern that reviewers would remove non-violating content that raised awareness about gender-based violence.

Tier 2 hate speech rules on expressions of contempt were applied to the second post, the Board noted. The Board recognized that the public-facing policy of the Tier 2 hate speech rules, in the Hate Speech policy, was clearer than the Tier 1 hate speech rules. However, there was still concern about Meta’s approach when dealing with expressions to condemn or raise awareness. The Board held that there was no guidance to guarantee an allowance regarding awareness-raising content due to Meta’s position that additional language present in the same video should not be used to analyze statements of contempt.

2. Legitimate aim

According to the Board, Article 19 of the ICCPR provides an exhaustive list of legitimate aims that justify limitations to freedom of expression, which include the protection of the rights of others. The Board recognized that the Hate Speech policy aims to protect Meta’s users from harm caused by hate speech, such as offline violence or discrimination.

3. Necessity and proportionality

As the Board explained, limitations to freedom of expression must be appropriate and the least intrusive measures to achieve their protective functions. As such, social media platforms should consider a wide range of ways to deal with problematic content before deleting it.

The Board implemented the Rabat Plan of Action to analyze the content at hand. The Rabat Plan is used to assess “the necessity and proportionality of removing hate speech” [p. 17] by studying the context of the expression, the identity and intent of the speaker, the content itself, the extent of the expression, and the likelihood of harm including its imminence. The Board found that, in light of the test, the content didn’t pose any risk of imminent harm, thus its removal would be unnecessary to protect men from harm.

Furthermore, the Board determined that the posts were of public interest and non-violent as they directly condemned, and raised awareness about,  gender-based violence. The Board stressed that the first post was a factual statement that men committed gender-based violence and the second post included a personal opinion caused by the global phenomenon of violence against women. Members of the Board who found that the second post violated the Hate Speech policy agreed that the post should remain on Instagram as it did not pose likely or imminent harm, making its removal unnecessary.

The Board said that these cases highlighted how Meta’s enforcement approach to gender-based hate speech can result in the disproportionate removal of content raising awareness and condemning violence against women. The Board recommended Meta to consider the context and prevalence of gender-based violence in its policy and enforcement choices to allow content that raises awareness and does not promote offline violence or create an environment of intimidation.

• Policy Recommendations

1. Content policy

The Board recommended Meta to include an exception to its Hate Speech policy to allow content that condemns or raises awareness of gender-based violence.

2. Enforcement

The Board recommended Meta to update its internal guidelines documents for reviewers to include clear parameters about what constitutes a qualified behavioral statement and what does not. The Board said that this was important since the current guide made it impossible for reviewers to reach the correct decisions when evaluating content condemning and raising awareness about gender-based violence.  

The Board also recommended Meta to improve the accuracy of secondary reviews “by sending secondary review jobs to different reviewers than those who previously assessed the content.” [p. 19]

The Board recommended Meta to update its Transparency Center page with information on all penalties imposed when accounts accumulate strikes on Instagram—like it does for Facebook—to provide greater transparency and foreseeability to Instagram users.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Oversight Board’s decision expanded freedom of expression by allowing speech condemning or raising awareness about gender-based violence even if it includes harsh and offensive language to some groups, as long as it doesn’t promote violence or create an environment of discrimination against them. In its analysis of the content at hand, the Board implemented the Rabat Plan of Action and concluded that the statements did not incite violence, hatred, or discrimination against men. Thus they fell within the scope of freedom of expression. Through this decision, the Board fosters a safer environment for women to express themselves and raise awareness about their struggles.

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related international and/or regional laws.

The Board referred to this instrument to highlight Meta’s businesses’ human rights responsibilities.

The Board referred to this provision to assess Meta’s responsibilities towards freedom of expression.

While employing the three-part test, the Board referred to the General Comment for guidance. The Board also referenced the General Comment to underline how public morals differ widely.

The Board cited this document to reiterate the role of the internet in raising awareness about women’s struggles and in empowering women to express themselves.

The Board quoted this report to highlight that Meta should consider a range of restrictions on problematic content other than removal.

Through this document, the Board showed that the UN Special Rapporteur on freedom of expression has proposed that the three-part test should be used as a framework to guide platforms in content moderation practices.

The Board referred to this report to support the notion that the contested content did not pose a likely and inminent harm.

The Board referred to this document to highlight the relationship between the freedom of expression of women and the realization of their human rights.

The Board referred to this instrument to guide its analysis on whether the content constituted hate speech and its removal was necessary.

The Board referenced this decision to highlight its abiding concern about the vagueness of Meta’s strike system for its users.

The Board cited this case to underscore its concerns regarding Meta’s appeal and review system.

The Board referenced this case to highlight the limited resources and time available to reviewers to implement a contextual analysis under the Hate Speech policy.

The Board referenced this case to reiterate that context is key when determining the potential for adverse outcomes under the Hate Speech policy.

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

According to Article 2.1.3 of the Oversight Board Bylaws , “Where Meta determines that the content in a particular case was incorrectly actioned by Meta and reverses its original decision, the case selection committee may choose to select the case for summary decision […]”. In addition to that, Article 2 of the Oversight Board Charter stipulates that, “For each decision, any prior board decisions will have precedential value and should be viewed as highly persuasive when the facts, applicable policies, or other factors are substantially similar.”

Furthermore, Article 4 of the same Charter provides that, “The board’s resolution of each case will be binding and Facebook (now Meta) will implement it promptly, unless implementation of a resolution could violate the law. In instances where Facebook identifies that identical content with parallel context – which the board has already decided upon – remains on Facebook (now Meta), it will take action by analyzing whether it is technically and operationally feasible to apply the board’s decision to that content as well. When a decision includes policy guidance or a policy advisory opinion, Facebook (now Meta) will take further action by analyzing the operational procedures required to implement the guidance, considering it in the formal policy development process of Facebook (now Meta), and transparently communicating about actions taken as a result.”

The decision was cited in:

• Oversight Board Case of Call for Women’s Protest in Cuba

Official Case Documents

Official case documents:.

• Decision https://www.oversightboard.com/decision/IG-H3138H6S/
• Press Release issued by the Oversight Board https://oversightboard.com/news/1664046764100847-oversight-board-overturns-meta-s-decisions-in-the-violence-against-women-cases/

Amicus Briefs and Other Legal Authorities

• Public Comments Appendix https://www.oversightboard.com/wp-content/uploads/2024/07/7127012427314701.pdf

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Citing his recent comments, Republicans blame Joe Biden for Donald Trump rally shooting

A number of Republicans are pointing fingers at President Joe Biden after the shooting of former President Donald Trump at a political rally on Saturday, with some citing Biden’s recent statement that “it’s time to put Trump in a bullseye.”  

Biden told donors in a private phone call on Monday that Trump was running from his record and that Democrats "can't go another day without explaining what he's doing."

"We can't waste any more time being distracted," Biden said, pointing out that the election was just four months away.

"I have one job and that's to beat Donald Trump," Biden said. "We're done talking about the (June 27) debate. It's time to put Trump in the bullseye. He's gotten away with doing nothing for the last 10 days except ride around in his golf cart, bragging about scores he didn’t score…The fact is, he's not answering questions."

Republicans pounced on Biden's remarks after the shooting, even though there is no evidence trying those comments to the attack on Trump or the shooter's motivation. The man the FBI has identified as the shooter, Thomas Matthew Crooks  of Bethel, Pennsylvania, is a registered Republican, according to county voter records.

Still, Rep. Mike Collins, R-Ga. , shared part of the Biden quote on X and claimed without evidence along that “Joe Biden sent the orders.” 

Rep. Lauren Boebert , R-Colo., Sen. Marsha Blackburn , and the X account for the Republicans on the House Judiciary Committee shared a snippet of the quote on X as well.  

Responding to the shooting: Top Democrats condemn political violence after Trump assassination attempt

Sen. J.D. Vance, R-Ohio, a contender to be Trump's running mate, also took to X to blame the shooting on the Biden campaign , writing that the campaign's rhetoric "led directly to President Trump's attempted assassination.”

Biden condemned the shooting on Saturday at an emergency briefing room in Rehoboth Beach, Delaware, telling reporters "there is no place for this kind of violence in America. It’s sick. It’s sick."

“The idea – the idea – that there’s political violence, or violence in America like this, is just unheard of, it’s just not appropriate. Everybody, every must condemn it. Everybody,“ he said.

Biden also has repeatedly condemned political violence throughout the campaign and during his presidency, saying it is wrong and has no place in America.

USA TODAY reporter Michael Collins contributed to this report.