freedom of expression on the internet essay

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

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

I. Introduction

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

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

II. Democracy and Authoritarian Populism

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

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

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

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

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

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

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

A. The Impact of the Internet

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

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

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

B. The Role of Algorithms

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

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

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

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

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

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

C. Some Undesirable Consequences

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

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

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

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

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

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

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

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

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

IV. A Framework for the Regulation of Social Media

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

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

A. Intermediary Liability for User-Generated Content

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

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

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

B. Standards for Proactive Content Moderation

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

1. Transparency and Auditing

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

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

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

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

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

2. Due Process and Fairness

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

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

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

C. Minimum Duties to Moderate Illicit Content

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

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

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

V. Conclusion

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

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

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

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

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

Pepperdine Law Review

Home > LAW > PLR > Vol. 36 > Iss. 2 (2009)

The Future of Free Expression in a Digital Age

Jack M. Balkin

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In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed within a larger set of concerns that I call knowledge and information policy. The essay uses debates over network neutrality and intermediary liability as examples of these trends. Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. Properly designed, it gives people opportunities to create and build technologies and institutions that other people can use for communication and association. Hence policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values. The great tension in twentieth century free speech theory was the increasing protection of the formal freedom to speak against the background of mass broadcast technologies that reserved practical freedom to a relative few. The tension in twenty-first century free speech theory is somewhat different: New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects - toward greater participation and propertization - are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

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Jack M. Balkin The Future of Free Expression in a Digital Age , 36 Pepp. L. Rev. Iss. 2 (2009) Available at: https://digitalcommons.pepperdine.edu/plr/vol36/iss2/9

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By William Fisher

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Introduction The Internet offers extraordinary opportunities for "speakers," broadly defined.  Political candidates, cultural critics, corporate gadflies -- anyone who wants to express an opinion about anything -- can make their thoughts available to a world-wide audience far more easily than has ever been possible before.  A large and growing group of Internet participants have seized that opportunity. Some observers find the resultant outpouring of speech exhilarating.  They see in it nothing less than the revival of democracy and the restoration of community.  Other observers find the amount -- and, above all, the kind of speech -- that the Internet has stimulated offensive or frightening.  Pornography, hate speech, lurid threats -- these flourish alongside debates over the future of the Democratic Party and exchanges of views concerning flyfishing in Patagonia.  This phenomenon has provoked various efforts to limit the kind of speech in which one may engage on the Internet -- or to develop systems to "filter out" the more offensive material. This module examines some of the legal issues implicated by the increasing bitter struggle between the advocates of "free speech" and the advocates of filtration and control.     Back to Top | Intro | Background | Current Controversies | Discussion Topics | Additional Resources   Background Before plunging into the details of the proliferating controversies over freedom of expression on the Internet, you need some background information on two topics. The first and more obvious is the Free-Speech Clause of the First Amendment to the United States Constitution. The relevance and authority of the First Amendment should not be exaggerated; as several observers have remarked, "on the Internet, the First Amendment is just a local ordinance."  However, free-expression controversies that arise in the United States inevitably implicate the Constitution. And the arguments deployed in the course of American First-Amendment fights often inform or infect the handling of free-expression controversies in other countries. The upshot: First-Amendment jurisprudence is worth studying. Unfortunately, that jurisprudence is large and arcane. The relevant constitutional provision is simple enough: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .."  But the case law that, over the course of the twentieth century, has been built upon this foundation is complex. An extremely abbreviated outline of the principal doctrines would go as follows:   If a law gives no clear notice of the kind of speech it prohibits, it’s "void for vagueness." If a law burdens substantially more speech than is necessary to advance a compelling government interest, it’s unconstitutionally "overbroad." A government may not force a person to endorse any symbol, slogan, or pledge. Governmental restrictions on the "time, place, and manner" in which speech is permitted are constitutional if and only if: they are "content neutral," both on their face and as applied; they leave substantial other opportunities for speech to take place; and they "narrowly serve a significant state interest." On state-owned property that does not constitute a "public forum," government may restrict speech in any way that is reasonable in light of the nature and purpose of the property in question. Content-based governmental restrictions on speech are unconstitutional unless they advance a "compelling state interest."  To this principle, there are six exceptions: 1.  Speech that is likely to lead to imminent lawless action may be prohibited. 2. "Fighting words" -- i.e., words so insulting that people are likely to fight back -- may be prohibited. 3.  Obscenity -- i.e., erotic expression, grossly or patently offensive to an average person, that lacks serious artistic or social value -- may be prohibited. 4.  Child pornography may be banned whether or not it is legally obscene and whether or not it has serious artistic or social value, because it induces people to engage in lewd displays, and the creation of it threatens the welfare of children. 5.  Defamatory statements may be prohibited.  (In other words, the making of such statements may constitutionally give rise to civil liability.)  However, if the target of the defamation is a "public figure," she must prove that the defendant acted with "malice."  If the target is not a "public figure" but the statement involved a matter of "public concern," the plaintiff must prove that the defendant acted with negligence concerning its falsity. 6. Commercial Speech may be banned only if it is misleading, pertains to illegal products, or directly advances a substantial state interest with a degree of suppression no greater than is reasonably necessary.  

If you are familiar with all of these precepts -- including the various terms of art and ambiguities they contain -- you're in good shape. If not, you should read some more about the First Amendment.  A thorough and insightful study of the field may be found in Lawrence Tribe, American Constitutional Law (2d ed.), chapter 12.  Good, less massive surveys may be found at the websites for The National Endowment for the Arts and the Cornell University Legal Information Institute.

The second of the two kinds of background you might find helpful is a brief introduction to the current debate among academics over the character and desirability of what has come to be called "cyberdemocracy."  Until a few years ago, many observers thought that the Internet offered a potential cure to the related diseases that have afflicted most representative democracies in the late twentieth century:  voter apathy; the narrowing of the range of political debate caused in part by the inertia of a system of political parties; the growing power of the media, which in turn seems to reduce discussion of complex issues to a battle of "sound bites"; and the increasing influence of private corporations and other sources of wealth.  All of these conditions might be ameliorated, it was suggested, by the ease with which ordinary citizens could obtain information and then cheaply make their views known to one another through the Internet.

A good example of this perspective is a recent article by Bernard Bell , where he suggests that “[t]he Internet has, in many ways, moved society closer to the ideal Justice Brennan set forth so eloquently in New York Times v. Sullivan .  It has not only made debate on public issues more 'uninhibited, robust, and wide-open,' but has similarly invigorated discussion of non-public issues. By the same token, the Internet has empowered smaller entities and even individuals, enabling them to widely disseminate their messages and, indeed, reach audiences as broad as those of established media organizations.”

Recently, however, this rosy view has come under attack.  The Internet, skeptics claim, is not a giant "town hall."  The kinds of information flows and discussions it seems to foster are, in some ways, disturbing.  One source of trouble is that the Internet encourages like-minded persons (often geographically dispersed) to cluster together in bulletin boards and other virtual clubs.  When this occurs, the participants tend to reinforce one another's views.  The resultant "group polarization" can be ugly.  More broadly, the Internet seems at least potentially corrosive of something we have long taken for granted in the United States: a shared political culture.  When most people read the same newspaper or watch the same network television news broadcast each day, they are forced at least to glance at stories they might fight troubling and become aware of persons and groups who hold views sharply different from their own.  The Internet makes it easy for people to avoid such engagement -- by enabling people to select their sources of information and their conversational partners.  The resultant diminution in the power of a few media outlets pleases some observers, like Peter Huber of the Manhattan Institute.  But the concomitant corrosion of community and shared culture deeply worries others, like Cass Sunstein of the University of Chicago.

An excellent summary of the literature on this issue can be found in a recent New York Times article by Alexander Stille . If you are interested in digging further into these issues, we recommend the following books:

• Cass Sunstein, Republic.com (Princeton Univ. Press 2001)
• Peter Huber, Law and Disorder in Cyberspace: Abolish the F.C.C. and Let Common Law Rule the Telecosm (Oxford Univ. Press 1997)

To test some of these competing accounts of the character and potential of discourse on the Internet, we suggest you visit - or, better yet, participate in - some of the sites at which Internet discourse occurs. Here's a sampler:

• MSNBC Political News Discussion Board

Back to Top | Intro | Background | Current Controversies | Discussion Topics | Additional Resources

Current Controversies

1.  Restrictions on Pornography

Three times in the past five years, critics of pornography on the Internet have sought, through federal legislation, to prevent children from gaining access to it.  The first of these efforts was the Communications Decency Act of 1996 (commonly known as the "CDA"), which (a) criminalized the "knowing" transmission over the Internet of "obscene or indecent" messages to any recipient under 18 years of age and (b) prohibited the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."  Persons and organizations who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications, or who restricted such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, were exempted from these prohibitions.

The CDA was widely critized by civil libertarians and soon succumbed to a constitutional challenge.  In 1997, the United States Supreme Court struck down the statute, holding that it violated the First Amendment in several ways:

• because it restricted speech on the basis of its content, it could not be justified as a "time, place, and manner" regulation;
• its references to "indecent" and "patently offensive" messages were unconstitutionally vague;
• its supposed objectives could all be achieved through regulations less restrictive of speech;
• it failed to exempt from its prohibitions sexually explicit material with scientific, educational, or other redeeming social value.

Two aspects of the Court's ruling are likely to have considerable impact on future constitutional decisions in this area.  First, the Court rejected the Government's effort to analogize the Internet to traditional broadcast media (especially television), which the Court had previously held could be regulated more strictly than other media.  Unlike TV, the Court reasoned, the Internet has not historically been subject to extensive regulation, is not characterized by a limited spectrum of available frequencies, and is not "invasive."  Consequently, the Internet enjoys full First-Amendment protection.  Second, the Court encouraged the development of technologies that would enable parents to block their children's access to Internet sites offering kinds of material the parents deemed offensive.

A year later, pressured by vocal opponents of Internet pornography -- such as "Enough is Enough" and the National Law Center for Children and Families -- Congress tried again.  The 1998 Child Online Protection Act (COPA) obliged commercial Web operators to restrict access to material considered "harmful to minors" -- which was, in turn, defined as any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that is obscene or that meets three requirements:

(1) "The average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest." (2) The material "depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual conduct, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast." (3) The material, "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."  

Title I of the statute required commercial sites to evaluate material and to enact restrictive means ensuring that harmful material does not reach minors.  Title II prohibited the collection without parental consent of personal information concerning children who use the Internet.  Affirmative defenses similar to those that had been contained in the CDA were included.

Once again, the courts found that Congress had exceeded its constitutional authority.  In the judgment of the Third Circuit Court of Appeals , the critical defect of COPA was its reliance upon the criterion of "contemporary community standards" to determine what kinds of speech are permitted on the Internet:

Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of a each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standard in order to avoid criminal liability.  

The net result was to impose burdens on permissible expression more severe than can be tolerated by the Constitution.  The court acknowledged that its ruling did not leave much room for constitutionally valid restrictions on Internet pornography:

We are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible.  

In late 2000, the anti-pornography forces tried once more.  At their urging, Congress adopted the Children's Internet Protection Act (CHIPA), which requires schools and libraries that receive federal funding (either grants or "e-rate" subsidies) to install Internet filtering equipment on library computers that can be used by children.  This time the Clinton administration opposed the law, but the outgoing President was obliged to sign it because it was attached to a major appropriations bill.

Opposition to CHIPA is intensifying.  Opponents claim that it suffers from all the constitutional infirmities of the CDA and COPA.  In addition, it will reinforce one form of the "digital divide" -- by subjecting poor children, who lack home computers and must rely upon public libraries for access to the Internet, to restrictions that more wealthy children can avoid.  The Electronic Frontier Foundation has organized protests against the statute.   In April of this year, several civil-liberties groups and public library associations filed suit in the Eastern District of Pennsylvania seeking a declaration that the statute is unconstitutional.  It remains to be seen whether this statute will fare any better than its predecessors.

The CDA, COPA, and CHIPA have one thing in common: they all involve overt governmental action -- and thus are subject to challenge under the First Amendment.  Some observers of the Internet argue that more dangerous than these obvious legislative initiatives are the efforts by private Internet Service Providers to install filters on their systems that screen out kinds of content that the ISPs believe their subscribers would find offensive.  Because policies of this sort are neither mandated nor encouraged by the government, they would not, under conventional constitutional principles, constitute "state action" -- and thus would not be vulnerable to constitutional scrutiny.  Such a result, argues Larry Lessig, would be pernicious; to avoid it, we need to revise our understanding of the "state action" doctrine.  Charles Fried disagrees:

Note first of all that the state action doctrine does not only limit the power of courts to protect persons from private power that interferes with public freedoms. It also protects individuals from the courts themselves, which are, after all, another government agency. By limiting the First Amendment to protecting citizens from government (and not from each other), the state action doctrine enlarges the sphere of unregulated discretion that individuals may exercise in what they think and say. In the name of First Amendment "values," courts could perhaps inquire whether I must grant access to my newspaper to opinions I abhor, must allow persons whose moral standards I deplore to join my expressive association, or must remain silent so that someone else gets a chance to reach my audience with a less appealing but unfamiliar message. Such inquiries, however, would place courts in the business of deciding which opinions I would have to publish in my newspaper and which would so distort my message that putting those words in my mouth would violate my freedom of speech; what an organization's associational message really is and whether forcing the organization to accept a dissenting member would distort that message; and which opinions, though unable to attract an audience on their own, are so worthy that they must not be drowned out by more popular messages. I am not convinced that whatever changes the Internet has wrought in our environment require the courts to mount this particular tiger.

"Perfect Freedom or Perfect Control," 114 Harvard Law Review 606, 635 (2000).

The United States may have led the way in seeking (unsuccessfully, thus far) to restrict the flow of pornography on the Internet, but the governments of other countries are now joining the fray.  For the status of the struggle in a few jurisdictions, you might read:

• Joseph C. Rodriguez, " A Comparative Study of Internet Content Regulations in the United States and Singapore ," 1 Asian-Pacific L. & Pol'y J. 9 (February 2000).   (Singapore)

In a provocative recent article, Amy Adler  argues that the effort to curb child pornography online -- the kind of pornography that disgusts the most people -- is fundamentally misguided.  Far from reducing the incidence of the sexual abuse of children, governmental efforts to curtail child pornography only increase it.  A summary of her argument is available here .  The full article is available here .

2.  Threats

When does speech become a threat?  Put more precisely, when does a communication over the Internet inflict -- or threaten to inflict -- sufficient damage on its recipient that it ceases to be protected by the First Amendment and properly gives rise to criminal sanctions?  Two recent cases addressed that issue from different angles.

The first was popularly known as the "Jake Baker" case.  In 1994 and 1995, Abraham Jacob Alkhabaz, also known as Jake Baker, was an undergraduate student at the University of Michigan.  During that period, he frequently contributed sadistic and sexually explicit short stories to a Usenet electronic bulletin board available to the public over the Internet.  In one such story, he described in detail how he and a companion tortured, sexually abused, and killed a young woman, who was given the name of one of Baker's classmates.  (Excerpts from the story, as reprinted in the Court of Appeals decision in the case, are available here . WARNING: This material is very graphic in nature and may be troubling to some readers.  It is presented in order to provide a complete view of the facts of the case.)  Baker's stories came to the attention of another Internet user, who assumed the name of Arthur Gonda.  Baker and Gonda then exchanged many email messages, sharing their sadistic fantasies and discussing the methods by which they might kidnap and torture a woman in Baker's dormitory.  When these stories and email exchanges came to light, Baker was indicted for violation of 18 U.S.C. 875(c), which provides:  

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.  

Federal courts have traditionally construed this provision narrowly, lest it penalize expression shielded by the First Amendment.  Specifically, the courts have required that a defendant's statement, in order to trigger criminal sanctions, constitute a "true threat" -- as distinguished from, for example, inadvertent statements, hyperbole, innocuous talk, or political commentary.  Baker moved to quash the indictment on the ground that his statements on the Internet did not constitute "true threats." The District Court agreed , ruling that the class of women supposedly threatened was not identified in Baker's exchanges with Gonda with the degree of specificity required by the First Amendment and that, although Baker had expressed offensive desires, "it was not constitutionally permissible to infer an intention to act on a desire from a simple expression of desire."  The District Judge's concluding remarks concerning the character of threatening speech on the Internet bear emphasis:  

Baker's words were transmitted by means of the Internet, a relatively new communications medium that is itself currently the subject of much media attention.  The Internet makes it possible with unprecedented ease to achieve world-wide distribution of material, like Baker's story, posted to its public areas.  When used in such a fashion, the Internet may be likened to a newspaper with unlimited distribution and no locatable printing press - and with no supervising editorial control. But Baker's e-mail messages, on which the superseding indictment is based, were not publicly published but privately sent to Gonda.  While new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in this instance qualitatively change the analysis under the statute or under the First Amendment.  Whatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C. § 875(c).  

Two of the three judges on the panel that heard the appeal agreed .  In their view, a violation of 875(c) requires a demonstration, first, that a reasonable person would interpret the communication in question as serious expression of an intention to inflict bodily harm and, second, that a reasonable person would perceive the communications as being conveyed "to effect some change or achieve some goal through intimidation."  Baker's speech failed, in their judgment, to rise to this level.

Judge Krupansky, the third member of the panel, dissented .  In a sharply worded opinion, he denounced the majority for compelling the prosecution to meet a standard higher that Congress intended or than the First Amendment required.  In his view, "the pertinent inquiry is whether a jury could find that a reasonable recipient of the communication would objectively tend to believe that the speaker was serious about his stated intention."  A reasonable jury, he argued, could conclude that Baker's speech met this standard -- especially in light of the fact that the woman named in the short story had, upon learning of it, experienced a "shattering traumatic reaction that resulted in recommended psychological counselling."

For additional information on the case, see Adam S. Miller, The Jake Baker Scandal: A Perversion of Logic .

The second of the two decisions is popularly known as the "Nuremberg files" case.  In 1995, the American Coalition of Life Activists (ACLA), an anti-abortion group that advocates the use of force in their efforts to curtail abortions, created a poster featuring what the ACLA described as the "Dirty Dozen," a group of doctors who performed abortions.  The posters offered "a $ 5,000 [r]eward for information leading to arrest, conviction and revocation of license to practice medicine" of the doctors in question, and listed their home addresses and, in some instances, their phone numbers.  Versions of the poster were distributed at anti-abortion rallies and later on television.  In 1996, an expanded list of abortion providers, now dubbed the "Nuremberg files," was posted on the Internet with the assistance of an anti-abortion activist named Neil Horsley.  The Internet version of the list designated doctors and clinic workers who had been attacked by anti-abortion terrorists in two ways:  the names of people who had been murdered were crossed out; the names of people who had been wounded were printed in grey.  (For a version of the Nuremberg Files web site, click here. WARNING: This material is very graphic in nature and may be disturbing to many readers.  It is presented in order to provide a complete view of the facts of the case).

The doctors named and described on the list feared for their lives.  In particular, some testified that they feared that, by publicizing their addresses and descriptions, the ACLA had increased the ease with which terrorists could locate and attack them -- and that, by publicizing the names of doctors who had already been killed, the ACLA was encouraging those attacks.

Some of the doctors sought recourse in the courts.  They sued the ACLA, twelve individual anti-abortion activists and an affiliated organization, contending that their actions violated the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. §248, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962.  In an effort to avoid a First-Amendment challenge to the suit, the trial judge instructed the jury that defendants could be liable only if their statements were "true threats."  The jury, concluding that the ACLA had indeed made such true threats, awarded the plaintiffs $107 million in actual and punitive damages.  The trial court then enjoined the defendants from making or distributing the posters, the webpage or anything similar.

This past March, a panel of the Court of Appeals for the Ninth Circuit overturned the verdict , ruling that it violated the First Amendment.  Judge Kozinski began his opinion by likening the anti-abortion movement to other "political movements in American history," such as the Patriots in the American Revolution, abolitionism, the labor movement, the anti-war movement in the 1960s, the animal-rights movement, and the environmental movement.  All, he argued, have had their "violent fringes," which have lent to the language of their non-violent members "a tinge of menace."  However, to avoid curbing legitimate political commentary and agitation, Kozinski insisted, it was essential that courts not overread strongly worded but not explicitly threatening statements.  Specifically, he held that:  

Defendants can only be held liable if they "authorized, ratified, or directly threatened" violence. If defendants threatened to commit violent acts, by working alone or with others, then their statements could properly support the verdict. But if their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment.  

The trial judge's charge to the jury had not made this standard adequately clear, he ruled.  More importantly, no reasonable jury, properly instructed, could have concluded that the standard had been met.  Accordingly, the trial judge was instructed to dissolve the injunction and enter judgment for the defendants on all counts.

In the course of his opinion, Kozinski offered the following reflections on the fact that the defendants' speech had occurred in public discourse -- including the Internet:  

In considering whether context could import a violent meaning to ACLA's non-violent statements, we deem it highly significant that all the statements were made in the context of public discourse, not in direct personal communications. Although the First Amendment does not protect all forms of public speech, such as statements inciting violence or an imminent panic, the public nature of the speech bears heavily upon whether it could be interpreted as a threat.  As we held in McCalden v. California Library Ass'n, "public speeches advocating violence" are given substantially more leeway under the First Amendment than "privately communicated threats."  There are two reasons for this distinction: First, what may be hyperbole in a public speech may be understood (and intended) as a threat if communicated directly to the person threatened, whether face-to-face, by telephone or by letter. In targeting the recipient personally, the speaker leaves no doubt that he is sending the recipient a message of some sort. In contrast, typical political statements at rallies or through the media are far more diffuse in their focus because they are generally intended, at least in part, to shore up political support for the speaker's position.  Second, and more importantly, speech made through the normal channels of group communication, and concerning matters of public policy, is given the maximum level of protection by the Free Speech Clause because it lies at the core of the First Amendment.

2.  Intellectual Property

The First Amendment forbids Congress to make any law “abridging the freedom of speech.”  The copyright statute plainly interferes with certain kinds of speech: it prevents people from “publicly performing” or “reproducing” copyrighted material without permission.  In other words, several ways in which people might be inclined to “speak” have been declared by Congress illegal .  Does this imply that the copyright statute as a whole – or, less radically, some specific applications of it – should be deemed unconstitutional?

Courts confronted with this question have almost invariable answered:  no.  Two justifications are commonly offered in support of the compatibility of copyright and “freedom of speech.”  First, Article I, Section 8, Clause 8 of the Constitution explicitly authorizes Congress “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” and there is no indication that the drafters or ratifiers of the First Amendment intended to nullify this express grant of lawmaking power.  Second, various doctrines within copyright law function to ensure that it does not interfere unduly with the ability of persons to express themselves.  Specifically, the principle that only the particular way in which an idea is “expressed” is copyrightable, not the idea itself, ensures that the citizenry will be able to discuss concepts, arguments, facts, etc. without restraint.  Even more importantly, the fair use doctrine (discussed in the first module) provides a generous safe harbor to people making reasonable uses of copyrighted material for educational, critical, or scientific purposes.  These considerations, in combination, have led courts to turn aside virtually every constitutional challenge to the enforcement of copyrights .

Very recently, some of the ways in which copyright law has been modified and then applied to activity on the Internet has prompted a growing number of scholars and litigants to suggest that the conventional methods for reconciling copyright law and the First Amendment need to be reexamined.   Two developments present the issue especially sharply:

(1) For reasons we explored in the second module , last summer a federal court in New York ruled that posting on a website a link to another website from which a web surfer can download a software program designed to break an encryption system constitutes “trafficking” in anti-circumvention technology in violation of the Digital Millennium Copyright Act.  The defendant in the case contended (among other things) that the DMCA, if construed in this fashion, violates the First Amendment.  Judge Kaplan rejected this contention, reasoning that a combination of the Copyright Clause and an generous understanding of the "Necessary and Proper" clause of the Constitution provided constitutional support for the DMCA:  

In enacting the DMCA, Congress found that the restriction of technologies for the circumvention of technological means of protecting copyrighted works "facilitate[s] the robust development and world-wide expansion of electronic commerce, communications, research, development, and education" by "mak[ing] digital networks safe places to disseminate and exploit copyrighted materials." That view can not be dismissed as unreasonable. Section 1201(a)(2) of the DMCA therefore is a proper exercise of Congress' power under the Necessary and Proper Clause. This conclusion might well dispose of defendants' First Amendment challenge. Given Congress' justifiable view that the DMCA is instrumental in carrying out the objective of the Copyright Clause, there arguably is no First Amendment objection to prohibiting the dissemination of means for circumventing technological methods for controlling access to copyrighted works. But the Court need not rest on this alone. In determining the constitutionality of governmental restriction on speech, courts traditionally have balanced the public interest in the restriction against the public interest in the kind of speech at issue.  This approach seeks to determine, in light of the goals of the First Amendment, how much protection the speech at issue merits. It then examines the underlying rationale for the challenged regulation and assesses how best to accommodate the relative weights of the interests in free speech interest and the regulation. As Justice Brandeis wrote, freedom of speech is important both as a means to achieve a democratic society and as an end in itself.  Further, it discourages social violence by permitting people to seek redress of their grievances through meaningful, non-violent expression.  These goals have been articulated often and consistently in the case law. The computer code at issue in this case does little to serve these goals. Although this Court has assumed that DeCSS has at least some expressive content, the expressive aspect appears to be minimal when compared to its functional component.  Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ." On the other side of this balance lie the interests served by the DMCA. Copyright protection exists to "encourage individual effort by personal gain" and thereby "advance public welfare" through the "promot[ion of] the Progress of Science and useful Arts."  The DMCA plainly was designed with these goals in mind. It is a tool to protect copyright in the digital age. It responds to the risks of technological circumvention of access controlling mechanisms designed to protect copyrighted works distributed in digital form. It is designed to further precisely the goals articulated above, goals of unquestionably high social value. This is quite clear in the specific context of this case. Plaintiffs are eight major motion picture studios which together are largely responsible for the development of the American film industry. Their products reach hundreds of millions of viewers internationally and doubtless are responsible for a substantial portion of the revenue in the international film industry each year. To doubt the contribution of plaintiffs to the progress of the arts would be absurd. DVDs are the newest way to distribute motion pictures to the home market, and their popularity is growing rapidly. The security of DVD technology is central to the continued distribution of motion pictures in this format. The dissemination and use of circumvention technologies such as DeCSS would permit anyone to make flawless copies of DVDs at little expense.  Without effective limits on these technologies, copyright protection in the contents of DVDs would become meaningless and the continued marketing of DVDs impractical. This obviously would discourage artistic progress and undermine the goals of copyright. The balance between these two interests is clear. Executable computer code of the type at issue in this case does little to further traditional First Amendment interests. The DMCA, in contrast, fits squarely within the goals of copyright, both generally and as applied to DeCSS. In consequence, the balance of interests in this case falls decidedly on the side of plaintiffs and the DMCA.  

One of the axes of debate in the ongoing appeal of the lower-court ruling concerns this issue.  For a challenge to Judge Kaplan's discussion of the First-Amendment, see the amicus brief submitted to the Second Circuit by a group of law professors .

(2) Some scholars believe that the ambit of the fair use doctrine should and will shrink on the Internet.  Why?  Because, in their view, the principal purpose of the doctrine is to enable people to use copyrighted materials in ways that are socially valuable but that are likely, in the absence of a special legal privilege, to be blocked by transaction costs.  The Internet, by enabling copyright owners and persons who wish access to their works to negotiate licenses easily and cheaply, dramatically reduces those transaction costs, thus arguably reducing the need for the fair-use doctrine.  Recall that one of the justifications conventionally offered to explain the compatibility of copyright law and the First Amendment is the safety valve afforded critical commentary and educational activity by the fair use doctrine.  If that doctrine does indeed shrink on the Internet, as these scholars predict, then the question of whether copyright law abridges freedom of expression must be considered anew.

Discussion Topics

1.  Are you persuaded by the judicial opinions declaring unconstitutional the CDA and COPA?  Should CHIPA suffer the same fate?  Are there any ways in which government might regulate the Internet so as to shield children from pornography?

2.  Some authors have suggested that the best way to respond to pornography on the Internet is through "zoning."  For example, Christopher Furlow suggests the use of “restricted top-level domains” or “rTLDs” which would function similarly to area codes to identify particular areas of the Internet and make it easier for parents to control what type of material their children are exposed to online.  See Erogenous Zoning on The Cyber-Frontier, 5 Va. J.L. & Tech. 7, 4  (Spring 2000) .  Do you find this proposal attractive?  practicable?  effective?

3.   Elizabeth Marsh raises the following question:  Suppose that the Ku Klux Klan sent unsolicited email messages to large numbers of African-Americans and Jews.  Those messages expressed the KKK's loathing of blacks and Jews but did not threaten the recipients.  Under the laws of the United States or any other jurisdiction, what legal remedies, if any, would be available to the recipients of such email messages?  Should the First Amendment be construed to shield "hate spam" of this sort?  More broadly, should "hate spam" be tolerated or suppressed?  For Marsh's views on the matter, see " Purveyors of Hate on the Internet: Are We Ready for Hate Spam ?", 17 Ga. St. U. L. Rev. 379 (Winter 2000).

4.  Were the Jake Baker and Nuremberg Files cases decided correctly?  How would you draw the line between "threats" subject to criminal punishment and "speech" protected by the First Amendment?

5.  Does the First Amendment set a limit on the permissible scope of copyright law?  If so, how would you define that limit?

6.  Lyrissa Lidsky , points out that the ways in which the Supreme Court has deployed the First Amendment to limit the application of the tort of defamation are founded on the assumption that most defamation suits will be brought against relatively powerful institutions (e.g., newspapers, television stations).  The Internet, by enabling relatively poor and powerless persons to broadcast to the world their opinions of powerful institutions (e.g., their employers, companies by which they feel wronged) increases the likelihood that, in the future, defamation suits will be brought most often by formidable plaintiffs against weak individual defendants.  If we believe that "[t]he Internet is . . . a powerful tool for equalizing imbalances of power by giving voice to the disenfranchised and by allowing more democratic participation in public discourse," we should be worried by this development.  Lidsky suggests that it may be necessary, in this altered climate, to reconsider the shape of the constitutional limitations on defamation.  Do you agree?  If so, how would you reformulate the relevant limitations?

7.  Like Lessig, Paul Berman suggests that the Internet should prompt us to reconsider the traditional "state action" doctrine that limits the kinds of interference with speech to which the First-Amendment applies.  Berman supports this suggestion with the following example:  “…an online service provider recently attempted to take action against an entity that had sent junk e-mail on its service, a district court rejected the e-mailer's argument that such censorship of e-mail violated the First Amendment.  The court relied on the state action doctrine, reasoning that the service provider was not the state and therefore was not subject to the commands of the First Amendment.”  Such an outcome, he suggests, is unfortunate.  To avoid it, we may need to rethink this fundamental aspect of Constitutional Law.  Do you agree?  See Berman, "Symposium Overview: Part IV: How (If At All) to Regulate The Internet: Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to Private Regulation," 71 U. Colo. L. Rev. 1263 (Fall 2000).     Back to Top | Intro | Background | Current Controversies | Discussion Topics | Additional Resources

Additional Resources

Memorandum Opinion, Mainstream Loudoun v. Loudoun County Library , U.S. District Court, Eastern District of Virginia, Case No. 97-2049-A. (November 23, 1998)

Mainstream Loudoun v. Loudoun County Library , (Tech Law Journal Summary)

Lawrence Lessig, Tyranny of the Infrastructure , Wired 5.07 (July 1997)

Board of Education v. Pico

ACLU Report, "Fahrenheit 451.2: Is Cyberspace Burning?"

Reno v. ACLU

ACLU offers various materials relating to the Reno v. ACLU case.

Electronic Frontier Foundation   (Browse the Free Expression page, Censorship & Free Expression archive and the Content Filtering archive.)

The Electronic Privacy Information Center (EPIC) offers links to various aspects of CDA litigation and discussion.

Platform for Internet Content Selection (PICS)  (Skim the "PICS and Intellectual Freedom FAQ".  Browse "What Governments, Media and Individuals are Saying about PICS (pro and con)".)

Jason Schlosberg, Judgment on "Nuremberg": An Analysis of Free Speech and Anti-Abortion Threats Made on the Internet , 7 B.U. J. SCI. & TECH. L. (Winter 2001)

CyberAngels.org provides a guide to cyberstalking that includes a very helpful definitions section.

Cyberstalking: A New Challenge for Law Enforcement and Industry – A Report from the Attorney General to the Vice President (August 1999) provides very helpful definitions and explanations related to cyberstalking, including 1 st Amendment implications; also provides links to additional resources.

National Center for Victims of Crime

The Anti-Defamation League web site offers a wealth of resources for dealing with hate online , including guides for parents and filtering software.  The filtering software, called Hate Filter, is designed to give parents the ability to make decisions regarding what their children are exposed to online.  The ADL believes that “Censorship is not the answer to hate on the Internet. ADL supports the free speech guarantees embodied in the First Amendment of the United States Constitution, believing that the best way to combat hateful speech is with more speech.”

Laura Lorek, "Sue the bastards!."   ZDNet 3/12/2001.

"At Risk Online: Your Good Name."   ZDNet April 2001.  

Jennifer K. Swartz, " Beyond the Schoolhouse Gates: Do Students Shed Their Constitutional Rights When Communicating to a Cyber-Audience ," 48 Drake L. Rev. 587 (2000).

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Speaking Freely

Around the globe, freedom of expression (or free speech) varies wildly in definition, scope, and level of access. The impact of the digital age on perceptions and censorship of speech has been felt across the political spectrum on a worldwide scale. In the debate over what counts as free expression and how it should work in practice, we often lose sight of how different forms of censorship—of hate speech, for example—can have a negative impact on different communities, and especially marginalized or vulnerable ones.

Speaking Freely brings forth interviews with human rights workers, free expression advocates, and activists from a variety of disciplines and affiliations. The common thread in these interviews is that curtailing free expression, via public or private censorship, can harm our ability to fully and authentically participate in an open society.

Speaking Freely: Ethan Zuckerman

Ethan Zuckerman is a professor at the University of Massachusetts at Amherst, where he teaches Public Policy, Communication and Information. He is starting a new research center called the Institute for Digital Public Infrastructure. Over the years, he’s been a tech startup guy (with Tripod.com), a non-profit founder (Geekcorps.org) and co-founder (Globalvoices.org), and throughout it all, a blogger.

Speaking Freely: Mohamed El Gohary

Mohamed El Gohary is an open-knowledge enthusiast. After majoring in Biomedical Engineering in October 2010, he switched careers to work as a Social Media manager for Al-Masry Al-Youm newspaper until October 2011, when he joined Global Voices contracts managing Lingua until the end of 2021. He now works for IFEX as the MENA Network Engagement Specialist.

Speaking Freely: Nompilo Simanje

Nompilo Simanje is a lawyer by profession and is the Africa Advocacy and Partnerships Lead at the International Press Institute. She leads the IPI Africa Program which monitors and collects data on press freedom threats and violations across the continent, including threats to journalists’ safety and gendered attacks against journalists both online and offline to inform evidence-based advocacy. Nompilo is an expert on the intersection of technology, the law, and human rights. She has years of experience in advocacy and capacity building aimed at promoting media freedom, freedom of expression, access to information, and the right to privacy. She also currently serves on the Advisory Board of the Global Forum on Cyber Expertise. Simanje is an alumnus of the Open Internet for Democracy Leaders Program and the US State Department IVLP Program on Promoting Cybersecurity.

Speaking Freely: Rebecca MacKinnon

Rebecca MacKinnon is Vice President, Global Advocacy at the Wikimedia Foundation, the non-profit that hosts Wikipedia. Author of Consent of the Networked: The Worldwide Struggle For Internet Freedom (2012), she is co-founder of the citizen media network Global Voices, and founding director of Ranking Digital Rights, a research and advocacy program at New America. From 1998-2004 she was CNN’s Bureau Chief in Beijing and Tokyo. She has taught at the University of Hong Kong and the University of Pennsylvania, and held fellowships at Harvard, Princeton, and the University of California. She holds an AB magna cum laude in Government from Harvard and was a Fulbright scholar in Taiwan.

Speaking Freely: Obioma Okonkwo

Obioma Okonkwo is a lawyer and human rights advocate. She is currently the Head of Legal at Media Rights Agenda (MRA), a non-governmental organization based in Nigeria whose focus is to promote and defend freedom of expression, press freedom, digital rights and access to information within Nigeria and across Africa. She is passionate about advancing freedom of expression, media freedom, access to information, and digital rights. She also has extensive experience in litigating, researching, advocating and training around these issues. Obioma is an alumnus of the Open Internet for Democracy Leaders Programme, a fellow of the African School of Internet Governance, and a Media Viability Ambassador with the Deutsche Welle Akademie.

Speaking Freely: Lynn Hamadallah

Lynn Hamadallah is a Syrian-Palestinian-French Psychologist based in London. An outspoken voice for the Palestinian cause, Lynn is interested in the ways in which narratives, spoken and unspoken, shape identity. Having lived in five countries and spent a lot of time traveling, she takes a global perspective on freedom of expression. Her current research project investigates how second-generation British-Arabs negotiate their cultural identity. Lynn works in a community mental health service supporting some of London's most disadvantaged residents, many of whom are migrants who have suffered extensive psychological trauma.

Speaking Freely: Mary Aileen Diez-Bacalso

Mary Aileen Diez-Bacalso is the executive director of FORUM-Asia. She has worked for many years in human rights organizations in the Philippines and internationally, and is best known for her work on enforced disappearances. She has received several human rights awards at home and abroad, including the Emilio F. Mignone International Human Rights Prize conferred by the Government of Argentina and the Franco-German Ministerial Prize for Human Rights and Rule of Law. In addition to her work at FORUM-Asia, she currently serves as the president of the International Coalition Against Enforced Disappearances (ICAED) and is a senior lecturer at the Asian Center of the University of the Philippines.

Speaking Freely: Emma Shapiro

Emma Shapiro is an American artist, writer, and activist who is based in Valencia, Spain. She is the Editor-At-Large for the Don’t Delete Art campaign and the founder of the international art project and movement Exposure Therapy. Her work includes the use of video, collage, performance, and photography, while primarily using her own body and image. Through her use of layered video projection, self portraiture, and repeated encounters with her own image, Emma deconstructs and questions the meaning of our bodies, how we know them, and what they could be.

Regular censorship of her artwork online and IRL has driven Emma to dedicate herself to advocacy for freedom of expression. Emma sat down with EFF’s Jillian York to discuss the need for greater protection of artistic expression across platforms, how the adult body is regulated in the digital world, the role of visual artists as defenders of cultural and digital rights, and more.

Speaking Freely: Robert Ssempala

Robert Ssempala is a longtime press freedom and social justice advocate. He serves as Executive Director at Human Rights Network for Journalists-Uganda, a network of journalists in Uganda working towards enhancing the promotion, protection, and respect of human rights through defending and building the capacities of journalists, to effectively exercise their constitutional rights and fundamental freedoms for collective campaigning through the media. Under his leadership, his organization has supported hundreds of journalists who have been assaulted, imprisoned, and targeted in the course of their work.

Speaking Freely: Maryam Al-Khawaja

Maryam Al-Khawaja is a Bahraini Woman Human Rights Defender who works as a consultant and trainer on Human Rights. She is a leading voice for human rights and political reform in Bahrain and the Gulf region. She has been influential in shaping official responses to human rights atrocities in Bahrain and the Gulf region by leading campaigns and engaging with prominent policymakers around the world.

She played an instrumental role in the pro-democracy protests in Bahrain’s Pearl Roundabout in February 2011. These protests triggered a government response of widespread extra judicial killings, arrests, and torture, which she documented extensively over social media. Due to her human rights work, she was subjected to assault, threats, defamation campaigns, imprisonment and an unfair trial. She was arrested on illegitimate charges in 2014 and sentenced in absentia to one year in prison. She currently has an outstanding arrest warrant and four pending cases, one of which could carry a life sentence. She serves on the Boards of the International Service for Human Rights, Urgent Action Fund, CIVICUS and the Bahrain Institute for Rights and Democracy. She also previously served as Co-Director at the Gulf Center for Human Rights and Acting President of the Bahrain Centre for Human Rights.

Speaking Freely: Dr. Carolina Are

Dr. Carolina Are is an Innovation Fellow at Northumbria University Centre for Digital Citizens. Her research primarily focuses on the intersection between online abuse and censorship. Her current research project investigates Instagram and TikTok’s approach to malicious flagging against ‘grey area’ content, or content that toes the line of compliance with social media’s community guidelines.

She is also a blogger and creator herself, as well as a writer, pole dance instructor and award-winning activist. Dr. Are sat down for an interview with EFF’s Jillian York to discuss the impact of platform censorship on sex workers and activist communities, the need for systemic change around content moderation, and how there’s hope to be found in the younger generations.

Speaking Freely: Alison Macrina

Alison Macrina is an activist librarian and the director of Library Freedom Project (LFP). LFP is radically rethinking the library professional organization by creating a network of values-driven librarian-activists taking action together to build information democracy. LFP offers trainings, resources, and community building for librarians on issues of privacy, surveillance, intellectual freedom, labor rights, power, technology, and more—helping create safer, more private spaces for library patrons to feed their minds and express themselves.

Alison started LFP in 2015 to organize and build community with other librarians who are dedicated to library values of privacy, intellectual freedom, social responsibility, and the public good. Their work is informed by a social justice, feminist, anti-racist approach, and they believe in the combined power of long-term collective organizing and short-term, immediate harm reduction.

Library Freedom Project was also a 2023 EFF Award recipient, and we were excited for this opportunity to get Alison’s views on the interaction between freedom of expression and power, the vitally important role of libraries and librarians as defenders and facilitators of freedom of expression and access to information, and so much more.

Speaking Freely: Ron Deibert

Ron Deibert is a Canadian professor of political science, a philosopher, an author, and the founder of the renowned Citizen Lab, situated in the Munk School of Global Affairs at the University of Toronto. He is perhaps best known to readers for his research on targeted surveillance, which won the Citizen Lab a 2015 EFF Award. I had the pleasure of working with Ron early on in my career on another project he co-founded, the OpenNet Initiative, a project that documented internet filtering (blocking) in more than 65 countries, and his mentorship and work has been incredibly influential for me. We sat down for an interview to discuss his views on free expression, its overlaps with privacy, and much more.

Speaking Freely: Agustina Del Campo

Agustina Del Campo is the Director at the Center for Studies on Freedom of Expression and Access to Information (CELE) at the University of Palermo in Buenos Aires, Argentina. She holds a law degree from Universidad Catolica Argentina and an LL.M. in International Legal Studies from American University Washington College of Law.

Agustina has extensive experience in human rights training, particularly as it relates to freedom of expression and the press in the Inter-American human rights system. She has taught and lectured in several Latin American countries and the U.S.

EFF’s Executive Director Cindy Cohn caught up with Agustina at RightsCon 2023 in Costa Rica. In this brief but powerful exchange Agustina discusses how, though free speech has a bad rap these days, it is inherent in any advocacy agenda aimed at challenging – and changing – the status quo and existing power dynamics.

Speaking Freely: David Kaye

David Kaye is a clinical professor of law at the University of California, Irvine, and the independent board chair of the Global Network Initiative. He also served as the UN Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression from 2014-2020. It is in that capacity that I had the good fortune of meeting and working with him; he is someone that I consider both a role model and a friend and I enjoy any chance we have to discuss the global landscape for expression.

Speaking Freely: Grecia Macías

Grecia Macìas is a lawyer at R3D: La Red en Defensa de los Derechos Digitales. She graduated from the Universidad Panamericana Law School in Mexico. She has experience in Constitutional Law and Human Rights, and is passionate about issues of freedom of expression, privacy, content moderation and algorithm inequality.

EFF’s Director of Civil Liberties, David Greene, met up with Grecia at RightsCon 2023 in Costa Rica. They dove in for a lively conversation covering a wide range of topics like freedom of expression as a tool of power and community for the oppressed, particularly in the context of Mexico; what it means to be a woman working in the free speech space; and why young people are embracing free speech more and more. Grecia also gives us a pertinent and important reminder for us all- free speech is punk.

Speaking Freely: Nadine Strossen

Nadine Strossen is a leading voice for freedom of speech as a scholar and an activist in the US and globally. She is a constitutional law professor at New York Law School, a Senior Fellow with FIRE, the Foundation for Individual Rights and Expression, and was the President of the American Civil Liberties Union from 1991 through 2008. She has been a mentor and inspiration to numerous EFF attorneys and remains a trusted advisor.

Speaking Freely: Ada Palmer

Ada Palmer is a Renaissance historian whose work lies at the intersection of ideas and historical change. She is currently on research leave from the University of Chicago, where she teaches early modern European history. In this interview, we talk about censorship during the Inquisition, and how that parallels to today’s online censorship challenges.

Speaking Freely: Ahmet Alphan Sabancı

Ahmet Alphan Sabancı is a Turkish digital activist who works on free expression, security and privacy. He's the founder of NewsLabTurkey and has contributed to EFF's Surveillance Self-Defense. Ahmet spoke to me about his journey to becoming an activist, and what it's like to fight back against Turkey's censorship apparatus.

Speaking Freely: Rima Sghaier

Rima Sghaier is a human rights activist and researcher who works at the intersection of technology and human rights, particularly in the Middle East and North Africa. Rima grew up in Tunisia under the regime of Zine El Abidine Ben Ali, which lasted for twenty-four years. We discussed the impact of Tunisian internet censorship and much more.

Speaking Freely: Biella Coleman

Gabriella “Biella” Coleman is an anthropologist whose work focuses on a range of subjects, from the anthropology of medicine to the practice of whistleblowing. To EFF readers, she is probably best known for her work on hacker communities. In 2014, she published the book Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous (Verso). We discussed medical misinformation and much more.

Speaking Freely: Ásta Guðrún Helgadóttir

Ásta Guðrún Helgadóttir is a former Pirate Party member of the Icelandic parliament who currently serves as a digital policy advisor to a member of the European parliament. She’s known online for her passion for the Internet and digital policy, as well as her love of golden retrievers.

Speaking Freely: Addie Wagenknecht

Addie Wagenknecht is an artist and researcher based between the U.S. and Europe. We met a few years back when she invited me to be part of Deep Lab, a “collaborative group of cyberfeminist researchers, artists, writers, engineers, and cultural producers” that she co-founded in 2014. In this interview, we talked about art and free expression.

Speaking Freely: Evan Greer

Evan Greer is many things: A musician, an activist for LGBTQ issues, the Deputy Director of Fight for the Future, and a true believer in the free and open internet. Evan is a longtime friend of EFF, and it was great to chat with her about the state of free expression, and what we should be doing to protect the Internet for future activism.

Speaking Freely: Christian Frank

Christian Frank is a freelance IT consultant who was born and raised, and currently resides, in Cologne, Germany. Last year, he did some work protesting the Article 13 demonstrations in Europe, a topic that he remains passionate about. We discussed many things, including the internet as—to use Christian’s words—“another living space” that we need to keep fighting to protect.

Speaking Freely: Cristian León

Cristian León, based in Buenos Aires, works for Asuntos del Sur, a “think/do tank” that works to strengthen democracy and participation. Originally from Bolivia, Cristian works on open government and democracy across several countries in Latin America. We discussed free expression and surveillance in the region.

Speaking Freely: Sandra Ordoñez

Sandra (Sandy) Ordonez is dedicated to protecting women being harassed online. Sandra is an experienced community engagement specialist, a proud NYC Latina resident of Sunset Park Brooklyn, and a recipient of Fundación Carolina’s Hispanic Leadership Award. She is also a long-time diversity and inclusion advocate, with extensive experience incubating and creating FLOSS and Internet Freedom community tools.

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Protecting Freedom of Expression over the Internet: An International Approach

Notre Dame Journal of International & Comparative Law, Vol. 5, No. 1, 2015

31 Pages Posted: 12 Jun 2020 Last revised: 16 Dec 2020

Alan M. Sears

Center for Law and Digital Technologies (eLaw), Leiden Law School, Leiden University

Date Written: 2015

Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to make sure that the freedom of expression over the Internet remains respected. He discusses the advantages and disadvantages of the different frameworks, suggests proposals for improvements, and argues for the importance of engaging with different stakeholders in decision-making processes to better meet this end.

Keywords: human rights, fundamental rights, freedom of expression, Internet, internet governance, ICCPR, CDHRI, UPR, trade agreements

Suggested Citation: Suggested Citation

Alan M. Sears (Contact Author)

Center for law and digital technologies (elaw), leiden law school, leiden university ( email ).

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3 Freedom of expression and the Internet

The Internet has opened up new possibilities for the realisation of the right to freedom of expression. This is due to the Internet’s unique characteristics, including ‘its speed, worldwide reach and relative anonymity’. [9] These distinctive features have enabled individuals to use the Internet to disseminate information in ‘real time’, and to mobilise people. [10] The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Special Rapporteur) asserts that:

Unlike any other medium the Internet facilitated the ability of individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an ‘enabler’ of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole. [11]

Insofar as freedom of expression is concerned, the Internet presents a compelling platform for the decentralising of information and of institutional control – at its best it acts as a leveller to access to knowledge.

However, as the Special Rapporteur acknowledges, ‘like all technological inventions, the Internet can be misused to cause harm to others. [12]

3.1 Freedom of expression in human rights theory

The right to freedom of expression is deeply rooted in historical thought and underpinned by a number of largely interdependent rationales. Of these is the ‘truth rationale’ where ‘true opinion’ can be identified, and ‘false ideas’ exposed through criticism – a process facilitated by a free-flowing ‘marketplace of ideas’. [13]

The ‘democratic rationale’ identifies freedom of expression as necessary for the functioning of a truly representative government. [14] The HRC has emphasised the importance of press and media freedom for a democratic society:

A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. ... The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output. [15]

A core rationale for freedom of expression is the ‘self-determination rationale’, in which free speech is conceived of as an aspect of self-realisation and individual autonomy. [16] The ability to relate our thoughts and experiences is seen as an intrinsic part of being human, and therefore restrictions on this ability are viewed as inhibiting both individual autonomy and the ability to attain self-fulfilment.

In this vein, the HRC has also noted that freedom of information and expression, while central to democratic governance, is not restricted to political information and expression; it

includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others , subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. [17]

Accordingly, the right to freedom of expression has been described as an ‘enabler of other rights’ such as economic, social and cultural rights (i.e. rights to education and to take part in cultural life) as well as civil and political rights (i.e. rights to freedom of association and assembly). [18]

3.2 Freedom of expression and information in Australian law

In Australia there is no express Constitutional or legislative protection of the freedom of expression at the federal level (in contrast to human rights legislation in force in the ACT and Victoria), [19] Despite this, the courts have an important role in interpreting legislation consistently with human rights where possible. [20]

Although not expressly protected at a federal level, freedom of expression does enjoy some implied and residual [21] protection. The Australian High Court has held that an implied freedom of political communication ‘is an indispensable incident of the system of representative government which the Constitution creates’. [22]

The freedom of political communication found by the High Court to be implicit in the Constitution is unlikely to have the same breadth of subject matter as article 19(2) of the ICCPR, insofar as the latter goes beyond political matters. However, the very fact of restrictions being placed on freedom of expression on other subjects – including on grounds such as decency - may in some instances itself give the restricted or prohibited expression the status of political communication.

A number of potential restrictions on the right to freedom of expression are contemplated by Australian laws, including in laws on sedition; [23] national security; [24] telecommunications; [25] racial hatred; [26] copyright; [27] defamation; [28] perjury; [29] contempt of court; [30] fraud; [31] privacy, [32] and censorship in classification and broadcasting. [33]

A number of these laws are based on valid grounds for restriction referred to in article 19(3) of the ICCPR. However, questions remain as to whether some of these laws would meet the levels of transparency and proportionality required by article 19(3).

These questions raise broader concerns about censorship and the Internet. In particular, the Special Rapporteur notes the use of arbitrary blocking or filtering of content where such mechanisms are used to regulate and censor information on the Internet, with multi-layered controls that are often hidden from the public. [34] An example of such a system close to home was the Australian Government’s now discontinued mandatory Internet filtering proposal. This attracted wide-ranging criticism as providing broad and imprecisely defined parameters on what constituted ‘refused classification’ materials, resulting in websites being captured by the filter which were described by critics of the proposal as relatively innocuous. [35]

As the Special Rapporteur points out, excessive censoring can occur where the specific conditions that justify blocking are not established in law or are legislated for in an ‘overly broad and vague manner’. [36] In addition, even where justification for blocking exists, blocking measures may constitute a disproportionate means to achieving the purported aim, and content may frequently be blocked without the possibility of judicial or independent review. [37] This situation requires the balancing of freedom of expression against other rights and considerations that should be taken into account in achieving the appropriate balance.

3.3 Right to freedom of expression and information in human rights instruments

‘Human rights’ for the purposes of the Commission’s work include the rights and freedoms recognised in the ICCPR, including the right to freedom of expression and information in article 19. As discussed on the Commission’s webpage on the right to freedom of information, opinion and expression, [38] this right is also recognised and expanded on in the Convention on the Rights of the Child (CRC) [39] and the Convention on the Rights of Persons with Disabilities . [40] Freedom of expression and information is also recognised in article 19 of the Universal Declaration of Human Rights . [41]

The following discussion will focus on the right to freedom of expression as recognised by article 19 of the ICCPR.

[9] F La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression , Report to the Human Rights Council, 17 th session, UN Doc A/HRC/17/27 (2011), p 7. At http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx (viewed 27 August 2013.

[10] F La Rue, above, p 7.

[11] F La Rue, above, p 19.

[12] F La Rue, above.

[13] D Rolph, M Vittins and J Bannister, Media Law: Cases, Materials and Commentary (2010), pp 23-26.

[14] D Rolph, M Vittins and J Bannister, above, p 23.

[15] Human Rights Committee, General Comment No. 34 , note 4, para 13.

[16] D Rolph, M Vittins and J Bannister, note 13, p 23.

[17] Human Rights Committee, General Comment No. 34 , note 4, para 11 (emphasis added).

[18] F La Rue, note 9, p 7.

[19] See the Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic).

[20] See the Commission’s page Common law rights and human rights scrutiny for more discussion: http://www.humanrights.gov.au/common-law-rights-and-human-rights-scrutiny .

[21] See Brown v Classification Review Board (1997) 154 ALR 67, in which French J stated (at 76): ‘A person may say and write anything he pleases except in so far as he may not’. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, in which the High Court stated (at 567): ‘Within our legal system, communications are free only to the extent that they are left unburdened by the laws that comply with the Constitution’.

[22] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 599. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd & New South Wales v Commonwealth (1992) 177 CLR 106, and the discussion in D Rolph, M Vittins, J Bannister, note 12, pp 32-43.

[23] See the ‘urging violence’ offences in ss 80.2 – 80.2B of the Criminal Code Act 1995 (Cth).

[24] See, for example, the restrictions which may be placed on communication by certain individuals who are made the subject of control orders or preventative detention orders: Criminal Code Act 1995 (Cth) s 104.5(3)(e) and ss 105.15, 105.16, and 105.34.

[25] See the offences in Part 10.6, Div 474, Sub-div C of the Criminal Code Act 1995 (Cth).

[26] See, for example, Racial Discrimination Act 1975 (Cth) s 18C; Anti-Discrimination Act 1977 (NSW) s 20C; Racial and Religious Tolerance Act 2001 (Vic) ss 7 and 8.

[27] See the Copyright Act 1968 (Cth).

[28] See the discussion in N O’Neill, S Rice and R Douglas, Retreat From Injustice: Human Rights Law in Australia (2 nd ed, 2004), Chapter 17.

[29] See, for example, Crimes Act 1900 (NSW) s 327.

[30] See the discussion in N O’Neill, S Rice and R Douglas, note 28, Chapter 16, particularly the section entitled ‘Contempt by Criticising or “Scandalising” the Courts’.

[31] See, for example, Crimes Act 1900 (NSW) s 192G.

[32] See the Privacy Act 1988 (Cth).

[33] See for example Classification (Publications, Films and Computer Games) Act 1995 (Cth) and the Broadcasting Services Act 1992 (Cth).

[34] F La Rue, note 9, p 9.

[35] A Moses, ‘Filter was white elephant waiting to happen’, The Sydney Morning Herald , 9 November 2012. At http://www.smh.com.au/technology/technology-news/filter-was-white-elephant-waiting-to-happen-20121109-2923o.html (viewed 27 August 2013).

[36] F La Rue, note 9, p 10.

[37] F La Rue, above.

[38] See http://www.humanrights.gov.au/right-freedom-information-opinion-and-expression#other .

[39] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 27 August 2013).

[40] Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). At http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2008/12.html (viewed 27 August 2013).

[41] Universal Declaration of Human Rights , UN General Assembly Resolution 217A(III), UN Doc A/810, 71 (UDHR) (1948). At http://www.un.org/en/documents/udhr/ (viewed 27 August 2013).

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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.
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Acknowledgments

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

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Justifying Limitations on the Freedom of Expression

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• Volume 22 , pages 91–108, ( 2021 )

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

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Introduction

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

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

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

The Value of the Freedom of Expression

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

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

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

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

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

The Proportionality Test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Duty-Based Justificatory Approach

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

Duties of Justice

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

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

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

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

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

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

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

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

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

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

Is the Language of Duties Dangerous?

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

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

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

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

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

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

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

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

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Acknowledgements

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

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Two sides of the same coin – the right to privacy and freedom of expression

7 October 2013

The following is an English version of an article in the September issue of  Cuestión de Derechos , written by Privacy International's Head of International Advocacy, Carly Nyst.

To read the whole article (in Spanish), please go here.

The Chinese government installs software that monitors and censors certain anti-government websites. Journalists and human rights defenders from Bahrain to Morocco have their phones tapped and their emails read by security services. Facebook takes down wall posts after States complains of “subversive material”. Google hands over user data to law enforcement authorities that includes IP addresses, location data and records of communications. The US government conducts mass surveillance of foreign phone and internet users.

Each of these acts threatens both an individual’s freedom to express themselves, and their right to maintain a private life and private communications. In this way, privacy and free expression are two sides of the same coin, each an essential prerequisite to the enjoyment of the other. To freely form and impart ones political, religious or ethnical beliefs one needs an autonomous, private space free from interference, from the State, private sector or other citizens. Equally, infringements on the right to privacy – physical or online surveillance, monitoring of communications or activities, State intrusion into private, family or home affairs – prevent an individual from exercising their freedom expression.

This point has been made most recently by the UN Special Rapporteur on freedom of opinion and expression, Frank La Rue, in a landmark report to the Human Rights Council in June 2013. The report marks the first time the UN has recognized the impact of State surveillance on free expression and other human rights, and has condemned the latest trends in government surveillance condemned.  The report is a timely reminder of the serious implications of surveillance for civil liberties, particularly given that hardly a day passes without news of governments spying on journalists, hacking into emails, or demanding social networks turn over user data. It is clear that this widespread surveillance is not just about gathering information on a citizenry. It’s also about suppressing our ideas and our thoughts, controlling our actions and our words.

Free expression and privacy in the digital age

In the modern world, almost every act online is an act of expression.  Participating in an online chat, networking with friends and colleagues, and surfing websites and reading news, downloading files -- these are all acts of imparting or accessing information. In online interactivity, there is content generated and stored, some of which is publicly available, most of which is amongst select individuals and groups. Yet each of these acts also generates transactional information, and can be monitored by unintended parties. In turn, nearly every act of expression is now observable to communications providers, and in turn, the State. 

This is without precedent.  We could previously communicate with our friends and colleagues without it being known to anyone else.  We could move around cities countries and continents and meet with whomever we wished without it being known.  We could follow and join groups and movements without having to disclose identities.  We could publish and distribute pamphlets, posters, brochures, newspapers and books without knowing the creator, publisher, and reader.  The ability to act without being observed was innate to the act of expression so we benefited from privacy as we expressed ourselves by living our personal, political and professional lives.  Most importantly, we believed that these were rights worth protecting, enshrining in constitutions and promoting through advocacy and protecting in law.

The protection of free expression is now generally considered a common good.  Some States speak out in favour of its protection and admonish those who do not support it in the modern era, and in particular for the internet.  No State, however, promotes the right to privacy. Now, when States and human rights mechanisms speak often of promoting free speech and the importance of facilitating access to and use of the internet and new technologies, they rarely admit the implications of new technologies for the right to privacy. They knowingly support free expression in the modern context while ignore the right to privacy that has so long enabled and supported free expression. Put in a more worrying way, they want to see more people communicate and express themselves, particularly in countries where they are at risk for doing so, while turning a blind eye to how they are placing themselves at greater risk of identification, profiling, and persecution for having done so because of the surveillance that is now all too possible and probable.

Instead of enjoying equal promotion to free expression, privacy is often subjected to claims of cultural relativism – the catchphrase “privacy is a Western concept” is regularly lobbed at privacy advocates – or subjugated to concerns of security, development or growth. The right to privacy has not been fully developed by human rights protection mechanisms; the UN Human Rights Committee last issued a General Comment on the right to privacy  before most modern technologies – including the internet – were in mainstream usage, and it persists to neglect privacy considerations in its Concluding Observations on the human rights records of State parties. It has rarely recognized the interdependent and mutually reinforcing relationship between privacy and free expression.

This essay begins by elucidating the deprioritisation of the right to privacy in human rights and political discourses. It then goes on to establish the clear links between privacy and free expression, illustrating the interdependent relationship between the two rights by examining State control and surveillance of communications. It concludes by making recommendations for specific State actions to protect and promote the right to privacy, and calls for a stronger statement by UN human rights mechanisms on the mutually reinforcing relationship between the two rights.

Privacy – absent from the agenda

The failure of the international community to develop a stronger statement of the meaning and application of the right to privacy may be in part due to the challenges in defining the content and contours of the right. Although privacy is internationally recognized as a fundamental right, and has its foundations in the constitutions of scores of countries, as diverse as Chile,  Ethiopia,  and Nepal;  in numerous regional and international treaties;  and in the jurisprudence of courts across the democratic world, it is far more than a functional legal construct that’s validity derives from its existence in national or international law.  Despite its essential role in shielding individuals from government and corporate intrusion into their homes, communications, opinions, beliefs, identities and bodies, it is often claimed that it is an evolving social norm.  It does face a changing environment with new forms of data generation, storage, processing and surveillance, and as such it cannot be a static concept; its content and confines are contested,  subject to never-ending games of tug-of-war between individuals, governments and corporations. Innovation and change – not just in technologies, but in migration and border flows, security and conflicts, attitudes and priorities – inform and challenge our conceptions of the private and the public.  The continual development of new means to undermine or protect privacy gives rise to new discussions about how to contextualise it, and new questions about its salience in changing contexts. “Privacy” may have no fixed meaning or core content; our conceptualisations of privacy are bound to vary across historical periods, cultures and places. 

Understanding and protecting privacy is also challenged by the constant evolution of technologies that transform the way we think about the private and public spheres. Technological change alters our relationships and interactions with governments and the corporate sector,  and changes how we think about the realization and protection of human rights. This is particularly so when it comes to our communications – how we form and impart our beliefs and opinions. In order to enjoy privacy of communications individuals must be able to exchange information and ideas in a space beyond the reach of the State, the private sector and other members of society. As technologies increase the reach of the State, place power in the hands of the private sector, and create new societies and citizenries online, privacy protections are increasingly crucial.

Of course, the failure to protect and promote the right to privacy is about more than an inability to agree on a definition or conceptualization of the right. Rather, because the right to privacy is the fundamental safeguard of the citizen from the State, it is viewed by the State as a barrier to control, an impediment to power. Privacy is at the heart of the most basic understandings of human dignity – the ability to make autonomous choices about our lives and relationships, without outside interference or intimidation, is central to who we are as human beings. Autonomy is not just about the subjective capacity of an individual to make a decision, but also about having the external social, political and technological conditions that make such a decision possible.  Privacy confers those external conditions. As private autonomy is a key component of public life and debate, privacy is not only a social value, but also a public good.

Yet by the State that seeks to control its populace, it is viewed as an impediment, and thus is conceptualized as hampering security, development, and modernization. Individuals are offered simplistic, false choices between competing values: dignity or convenience;  freedom or control;  our rights and freedoms, or security,  modernisation  and development.  States tell us that stability cannot be ensured if anonymous online expression is unregulated, that communications must be visible by the State in order to prevent terrorism and cyber crime, that interactivity without observability would lead to illegality. All of these are false choices, pitting technology as a means for evil and privacy, the preserve of darker forces in society.

The idea that we must choose between privacy and security has too often pervaded the political and economic discourses, creating false dichotomies and spurring over-simplified arguments about the roles of technologies. The discussion reveals no nuance, no consideration of the values and priorities tied up in privacy and security, no reference to the potentials of technology or the changing nature of threats and security, no indication of the other choices that exist. It has cast security and privacy as competing concepts, rather than interlinking and potentially reinforcing values. Technologies have the potential to diffuse, rather than exacerbate, the privacy/security divide. The challenge is to improve access to and understanding of technologies, ensure that policy makers and the laws they adopt respond to the challenges and potentialities of technologies, and generate greater public debate to ensure that rights and freedoms are negotiated at a societal level.

Privacy and free expression – making the link

Technologies have blurred the line between public and private thought and expression; courts across the globe are confounded by questions about how to characterise social media musings and blogs, how to think about data like location, IP addresses and cookies. Today, more than ever, privacy and free expression are interlinked; an infringement upon one can be both the cause and consequence of an infringement upon the other.

This is particularly so in the case of communications surveillance. The things an individual says to another person, their intimate feelings and opinions, who they have relationships and connections with, what newspapers they read and what movies they watch, where they go and who they talk to: each of these pieces of information are incredibly sensitive and personal. They have long been considered the preserve of an individual’s private life, not for exposure to or infiltration by anyone without consent or without exceptional justification.

Innovations in some technologies have facilitated increased possibilities for communication, and protections of free expression and opinion, enabling anonymity, rapid information sharing, and cross-cultural dialogues. At the same time, changes in technologies have given rise to increased opportunities for State surveillance and intervention into individuals’ private communications. Digital “back doors” are built into mobile telephone networks to enable State surveillance; technologies such as mass interception systems and voice and speech recognition technology enable countrywide surveillance. Social media monitoring tools, deep packet inspection, and trojans are used to monitor individuals online. Data generated by internet companies about internet users’ online activity are accessed by States, who are increasingly mandating the retention of such data.

The range of expression that might be surveilled has also grown.  Whereas surveillance was historically aimed at private conversations taking place on the telephone, in the modern era, a vast portion of the expressive power of citizens is channeled through surveilable channels, including not only private one-to-one conversations, but books, magazines, conversations between groups, outlines and finished works, family records, library searches, radio shows, live video and digitized historical cultural artifacts. Modern technology increases access to all of these items and more, at the risk of making all such access knowable by powerful state actors.

When the most confidential and secret parts of an individuals’ life are exposed to the possibility of intrusion, the freedom to express oneself cannot be genuinely enjoyed. Rather, individuals begin to be afraid that their thoughts, words and relationships will be the subject of interception and analysis. Restrictions on the content that individuals can access on the internet thwart their ability to freely impart and receive information and knowledge. Requirements that individuals identify themselves online, or as a prerequisite to access internet or phone services, can result in their de facto exclusion from vital social spheres, undermining their rights to expression and information, and exacerbating social inequalities. Infringements upon private life thus have a chilling effect on free expression, causing individuals to censor their communications and inhibiting their ability and willingness to participate and engage.

The right to seek and receive information is also chilled when the government or the private sector has unchecked access to what information an individual accesses. A visitor to a library, a bookstore, or a newsstand might expect that their choice of reading material will remain private and that they will not be identified or persecuted for their reading matter. When reading matter is delivered over the monitored electronic network, that guarantee can no longer be met. States now potentially have access to all books, websites, newspapers and magazines an individual reads, the movies they watch and the music they listen to.

Infringements upon privacy and free expression also have interrelated impacts on the right to freedom of association and assembly. The monitoring of communications allows the State to know and scrutinise relationships and exchanges that individuals might otherwise want to remain confidential. Surveillance, while impacting individuals’ ability to freely express their opinions, might also impact to whom they are able to express such opinions.  Individuals’ abilities to organize are also restricted: where previously membership lists were sometimes mandated in order to intimidate individuals from joining organisations, it is now possible to discern their interests from online activities, location data of their mobile and related internet services, or use of scanning technologies to identify all people within a given physical space, such as a public protest.  These activities of registration and identification can now take place without the knowledge or consent of the individuals – a return to covert information gathering on political participation.

Certain groups are particularly vulnerable violations of their rights to free expression, privacy, and information. Because privacy enables individuals to work in a space unhindered by authority, journalists rely on privacy protection in order to receive and pursue information from confidential sources, including whistleblowers. The protection of sources has long been established as a requirement implicit in the right of freedom of expression.  An environment where surveillance is widespread, and unlimited by due process or judicial oversight, cannot sustain the presumption of protection of sources. Even a narrow, non-transparent, undocumented, executive use of surveillance may have a chilling effect without careful and public documentation of its use, and known checks and balances to prevent its misuse.

Internet filtering, monitoring, and restrictions on anonymity online severely impede the ability of journalists to conduct research and investigations, and to publish their work to specific or general audiences. Not only do such measures impact upon journalists’ ability to freely express themselves, they also inhibit the important functions that the media plays in maintaining transparency and accountability of the State. Journalists are also particularly vulnerable to becoming targets of communications surveillance because of their reliance on online communications and smartphone devices. This is especially so where journalists are focusing their investigations on political or religious affairs.

Human rights defenders and political activists are also disproportionately subjected to surveillance and censorship. Surveillance of human rights defenders in Colombia,  Bahrain,  and Algeria  has been well documented. In such countries, human rights defenders and political activists report having their every phone call and email monitored, and their movements tracked. Freedom of expression and freedom of information allow human rights defenders to challenge abuses to human rights; without the privacy to conduct investigations and communications away from the prying eyes from the States, this becomes impossible.

Recognition and commitment

It is crucial that States – and the UN human rights mechanisms of which they are members and subjects – recognize the importance of protecting and promoting the right to privacy, both as an essential end in itself, and as a fundamental prerequisite to free expression, thought and information.

The latest report by the UN Special Rapporteur on freedom of opinion and expression drives these conclusions home. The Special Rapporteur emphasizes that “communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society”. The Special Rapporteur goes on to make a number of recommendations to States, including the following:

• Communications surveillance must be regulated by legal frameworks, must be strictly and demonstrably necessary to achieve a legitimate aim, and must be subject to the principle of proportionality;
• Illegal surveillance by public or private actors should be criminalized;
• The provision of communications data by the private sector to the State should be sufficiently regulated and monitored by an independent authority;
• Anonymity online should not be outlawed, nor should encryption.

With each new piece of technology, a dangerous cat-and-mouse game emerges – increased connectivity also leads to a greater chance of a breach of confidentiality. That is why the Special Rapporteur calls upon the UN human rights mechanisms to update their conceptualisations of the right to privacy in the context of new technologies.  Without this, existing protections will not just become outdated. Rather, inaction to reconceptualise how our privacy is protected will leave the door wide open for States to abuse new technology, violating our rights in the process, all because those with the power to do so refused to act.

Any State that is serious about promoting the right to free expression must get serious about promoting the right to privacy. A free and open press is nothing if the journalists writing for the papers are at risk of surveillance; if the individuals who read the online news sources are being tracked and their data recorded. Just as security cannot be used to justify the suppression of minority opinions, so too it must not be used to justify the monitoring, profiling, tracking and general unwarranted interference with our lives, our autonomy, and the development of our personalities.

Privacy is the fundamental barrier that stands in the way of complete State control and domination. Without it, the social contract is broken, and individuals cannot recognize their democratic rights to participate, build, grow and think. A citizenry unable to form or communicate private thoughts without the interference of the State will not only be deprived of their right to privacy, they will be deprived of their human dignity. For the ability to freely think and impart ideas is essential to who we are as human beings.

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In this segment of Democracy Talks, we look at freedom of expression in three ways: the rise of the internet as a vehicle for expression, the state of free speech on college campuses, and the challenges that face freedom of the press in the United States and elsewhere.

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As the war in Ukraine reminds us, social media remains a powerful force for good. Ukrainians, including President Volodymyr Zelensky, have used the digital world to rally one another and keep the world informed about Russia’s invasion tactics. At the same time, Russia continues to use its own internet tools to spread disinformation about its moves in Ukraine.

These most recent examples of the duality of the internet highlight how important it is for policymakers and technology leaders in the United States and other western democracies to strike the right balance. They would greatly harm freedom of expression, as well as the free flow of information, if they employ the wrong strategies to curtail the worst aspects of social media use. At the same time, they would immensely harm their countries and people around the world if they allowed disinformation to spew across the internet.

This is no easy balance to strike, but we believe it is best left in the hands of the private sector to strike the balance. Facebook’s Oversight Board, as its co-chair  Michael McConnell explains in his Democracy Talks interview, is one tech company’s attempt to find this balance. The independent board is comprised of leaders and experts who have no need to kowtow to any potential threat to their decision making. That is a good place to start.

Yet Facebook or any other tech company cannot just use such a board as window dressing. Their recommendations need enacting, or else panel members should start drafting their public resignation letters.

The private sector also can attack this challenge through innovations. Adrian Shahbaz  notes how WhatsApp made end-to-end encryption standard for its more than 1 billion users. That, he says, is a greater protection of privacy than a government regulation.

That said, elected leaders and regulators alike have a role to play. One place is for Congress to continue work on revamping Section 230 of the Communications Decency Act. When written in the late 1990s, that section rightly protected the then-emerging internet from being subject to the same liability laws as traditional publishers and news organizations.

Now, it is time to reconsider that exemption since social media platforms have become a go-to source for information. That includes disinformation that autocrats and others spread. As this 2021 Bush Institute Policy Brief notes , the goal should be “finding fair and limited ways for social media companies to be held responsible for the content that appears on their sites.”

The U.S. and its democratic allies also must thwart China and autocratic nations from rewriting the rules of the internet in global forums. Shahbaz, the Director of Technology and Democracy at Freedom House, details the importance of countering this challenge. He rightly says, “If we no longer live in a world where, at least on paper, there is a commitment to freedom of expression and human rights, then the foundations of democracy will begin to crumble.”

Free Speech on College Campuses

In an illuminating exchange, Greg Lukianoff, President and CEO of the Foundation for Individual Rights in Education, and Jamal Greene, the Dwight Professor of Law at Columbia Law School, discussed the tension between free speech and inclusion . That tension seems counterintuitive, but its existence points to the importance of each of us breaking out of our bubbles at an early age. We then can know and perhaps understand differing opinions  and points of view. 

Free speech in a diverse, pluralistic society needs citizens to experience and engage with others, even if we find those engagements uncomfortable, offensive, or even crass. Without that exposure, we’re tempted to shutout everything and anything we disagree with because it feels alien and wrong. As Condoleezza Rice said in a recent Reimagining Democracy event: “We don’t have a constitutional right to be comfortable.” 

The breaking down of bubbles is especially important for college students. As the Bipartisan Policy Center’s (BPC)  Jacqueline Pfeffer Merrill puts it in her interview, Generation Z students on campuses increasingly hail from homogenous neighborhoods and backgrounds. As a result, they often lack the skills to engage with classmates with different experiences and views.

Part of having uncomfortable conversations with others on campus is the responsibility of students themselves. Yet it also is upon university administrators to create opportunities for engagements to occur as early as college orientation sessions. That way, the chances increase so that, as Merrill says,  “…diversity, equity, and inclusion goes along with freedom of expression.”

Equally important, university leaders must not shy away from the inevitable controversies. The BPC task force recommends a series of sensible planning exercises for university leadership teams and faculty representatives to walk through so they will be ready for controversy. Merrill is correct:  “Having controversial expression is not a sign of failure.”

Freedom of the Press

Russia’s suppression of a free press is not limited to actions it has taken to suspend independent Russian media. But Vladimir Putin’s moves certainly have underscored his disregard for a free press. Journalists like Dmitry Muratov, who won the Nobel Peace Prize last year for his commitment to independent reporting through his paper, Novaya Gazeta , understands this all too well.

So does Maria Ressa, who shared that prize with him last year. Her publication, The Rappler , remains committed to searching for the truth against serious opposition from authorities in the Philippines, her native country.

In our own hemisphere, we see an alarming challenge to freedom of the press. Seven Mexican journalists already have been murdered this year, as our Bush Institute colleague Jenny Villatoro  reports in her essay about freedom of expression in Central America.

Guatemalan journalist Sofia Menchu details in her interview how authorities there attempt to suppress an independent media. She reports how government leaders use lawsuits to stifle journalists, which in part is a way to get journalists to censor themselves before publishing a story or commentary.

Fortunately, Menchu remains valiant in searching for information about how governments, businesses, and other institutions and individuals in her country operate. But she and others need leaders from President Joe Biden to members of Congress to State Department officials to speak out against attempts to crack down on a free press in Guatemala, Central America, and elsewhere. Menchu describes the need succinctly: “It’s very important for journalists to have the support of international governments and organizations so they can feel safe and supported. They can help us have freedom of speech.”

Along with speaking out, lawmakers should adequately fund organizations like the National Endowment for Democracy and U.S. Agency for International Development. Part of their democracy-building work is growing a free press around the world.

Legislators also need to provide the support that taxpayer-funded organizations like Voice of America, Radio Free Asia, and Radio Free Europe/Radio Liberty need. Then, those organizations can provide valuable and factual information to people in nations that lack uncensored news.

Here at home, we have a different kind of media problem: the decline in local newspapers around the country. Margaret Sullivan, the Washington Post’s media critic and author of Ghosting the News , describes the impact of this phenomenon , including in her hometown of Buffalo, where she once served as editor of the Buffalo News .

A number of things happen, none of them good for our democracy. One alarming result, Sullivan explains, is how people in a community become less politically and civically engaged when their local paper dies or shrinks away.

An action Congress should consider is  rewriting tax laws so that newspapers could more easily become nonprofit institutions. Around the country, numerous examples exist of nonprofit news organizations providing quality, independent journalism.

Of course, all of these recommendations are aimed at the goal of enhancing the flow of reliable information. As we said at the outset, that is essential to creating and maintaining a vibrant democracy.

• Jul 24, 2024 Media pluralism glossary of terms By: William McKenzie, Chris Walsh
• Jun 27, 2024 SMU student writes children's book encouraging all generations to work across differences Featuring: Chris Walsh

Freedom of Expression Essay

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Searching for freedom of expression essay? Look no further! This argumentative essay about freedom of expression, thought, & speech, will inspire you to write your own piece.

Introduction

• The Key Concepts

Freedom of expression refers to the right to express one’s opinions or thoughts freely by utilizing any of the different modes of communication available. The ideas aired should, however, not cause any intentional harm to other personality or status through false or ambiguous statements. Communication of ideas can be achieved through speech, writing or art. Freedom of expression, unlike freedom of thought, may be regulated by the appropriate authorities in any society in order to avoid controversies between different individuals.

The extent to which this limitation or censorship is done varies from nation to nation and is dependent on the government of the day. According to the Universal Declaration of Human Rights, every individual has the right to search for information, access and impart variety of ideas irrespective of the frontiers.

Freedom of Expression: The Key Concepts

The subject of freedom of expression has always been controversial, especially when considering political aspects. A state is perceived to have the mandate to impede people from convening groups in which they air their opinions if those views can result in direct harm to other people.

However, the interference would only be an exception if doing so results in more beneficial outcomes than standing aside. For one to be in a position to gauge the eventuality of a gain or a loss, then there should be absolute freedom of expression on all matters irrespective of the nature of the sentiments made.

Arguments for absolute freedom of expression can be a made by evaluating the purpose for which the ideas are expressed and the manner in which we evaluate what is true or false. According to Mill (Eisenach, 2004), the right to express one’s opinions offers humanity a rare chance to switch over an error for the truth if the idea expressed happens to be true.

In case the opinion happens to be wrong, mankind stands a chance of getting a clearer picture of the known truth through collusion with a mistake. Therefore, freedom of expression acts in the best interests of mankind as it endeavors to progress and its limitation deprives people of the prospects of growth.

Whether we let expression of an opinion to be limited or censored, whereas it could be true, then we present ourselves as beyond reproach. We consider all that we know to be the truth and therefore dispel all opinions that question this truth. It is possible for people or authorities to be in fault. For instance, what we consider to be morally right or wrong may not be so.

The lines that define moral rights and wrongs were set by people who could possibly have mistaken. In order to draw the limit, one must differentiate between sureness and the truth. Our certainty that a particular idea is false does not in any way excuse its expression. Suppressing such an idea would not only justify our confidence of the opinion being wrong, but also proves that we are flawless.

If limitation of people’s freedom of expression in matters such as racism is based on certainty that mankind does not stand to lose any benefit, then this sureness should be founded in the freedom itself. We can only consider ourselves to be certain when there have been no opinions raised to question the truths we hold. Therefore, in order to boost our certainty, we have to leave room for the opposing beliefs.

There are governments that censor the expression of certain ideas not because they are false, but because they are considered to be hazardous to the society. Mill argues that in such a situation, the hazard in the expressed opinions is questionable. The only way to ascertain that the opinion is in fact dangerous is not to suppress its expression but to allow its free discussion.

Secondly, if the opinion that is being limited is true, then the alternative view held by the government must be false. Experience has shown that all beliefs that are false are never constructive in the long run. Therefore, the government that prefers to hold a false conviction in place of a hazardous truth does not act in the best interests of its people.

In many instances, the silenced view may be a mistake. However, most of these mistakes do carry with them a scrap of truth. On the other hand, the existing view on each of the different topics often does not contain the entire truth. By listening to the opinions of others on the matter, an opportunity to learn the rest of the uncovered truths presents itself.

For instance in politics, we could have two political parties with different agendas. One wants to institute reforms while another desires to ensure stability. People may not be in a position to discern what should be retained or altered, but ensuring the parties at opposing ends ensures each party checks on the performance of the other. In the long run, we strike for a beneficial balance between their supposed agendas (Bhargava, 2008).

Moreover, if the opinion being expressed is entirely true, it may not be considered so with certainty. For confidence to feature, these views must be contested against other rational opinions of others in order to single out the supporting arguments. It is expected that those who believe in their opinions will place strong arguments in their favor (Matravers, 2001).

If an authority believes in the rationality of its ideas, then it should leave room for the expression of opposing ideas. For instance, if any reigning political party has faith in the views it has concerning the development of the country’s economy, it should not be wary of an opposition party with contradicting views. After all what they stand for has factual backing (O’Rourke, 2001).

Lastly, the battle for supremacy between different opinions opens up a more comprehensive understanding of our beliefs. We begin to comprehend what is required of us and are, thus, in a position to act on them. Human beliefs do not exhibit any motivation and the debates that arise are what add fuel to the fire.

Holding beliefs with a conservative mindset only serves to hinder our acceptance of the possible alternatives (Jones, 2001). Therefore, opposition exhibited in the freedom of speech opens up a lee way for open-mindedness besides posing a challenge to hypocrisy and logical sluggishness.

The absence of restrictions on people’s freedom of oppression allows for the exchange of error for truth or the clarification of the existing truth. It also reinforces our certainty in the opinions we consider true besides increasing our open-mindedness and thoughtfulness. For governments, it ensures those entrusted with the leadership of the country have reasonable opinions that work for the common good of the country’s citizens.

Free discussion and analysis of different ideas will, thus, result in the prosperity of mankind rather than the detrimental effects it is assumed to bring.

Freedom of Expression FAQ

• What Is Freedom of Expression? Freedom of expression is the ability of individual people and groups to express their thoughts, beliefs, emotions, and ideas without any restrictions or censorship from the government. This freedom is protected by the First Amendment of the US Constitution.
• How Does Freedom of Expression Protect Individual Liberty? The First Amendment of the US Constitution guarantees freedom of expression to all citizens. This means that the US Congress does not have the right to restrict the media or people from speaking freely. People also have the right to peaceful assemblies and petitions to the government.
• Why Is Freedom of Expression Important for Democracy? Freedom of expression is an essential human right. It guarantees the free exchange of information, opinions, and ideas in the public space, allowing people to independently form their own views on all the essential issues.

Bhargava, H. (2008). Political Theory: An Introduction . Delhi: Pearson Education.

Eisenach, E. (2004). Mill and Moral Character . New York: Penn State Press.

Jones, T. (2001). Modern Political Thinkers and Ideas: An Historical Introduction . New York: Routledge.

Matravers, D. (2001) Reading Political Philosophy: Machiavelli to Mill . New York: Routledge.

O’Rourke, K. (2001). John Stuart Mill and Freedom of Expression: The Genesis of a Theory . Connecticut: Taylor & Francis.

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Hate speech or free speech: an ethical dilemma?

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• https://doi.org/10.1080/03906701.2022.2133406

Introduction

Evolution of hate speech perception and its legal regulation, the language of discrimination and its reflections, social functions and consequences of derogatory language, freedom of expression and its limitations, conclusions, disclosure statement, additional information.

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Freedom of expression is the cornerstone and the warrant of democracy, but like all other rights and freedoms we enjoy, also the right to free speech has its limits. Hate speech is one of the most resilient manifestations of cyberviolence, and is not to be equalled with free speech. This is partly related to our perception of the freedom of expression that has substantially changed through time; from the past focus on being able to freely express your opinion, to question, dissent and challenge the government, to today’s need to limit these rights in order to protect the targets of hate speech. The article first looks at how hate speech is defined at the level of the EU and at the problems connected with its regulation. It continues with an overview of relevant literature and research on the topic, and concludes by analyzing and interpreting the results of an online survey conducted among Slovenian university students in February 2022. Our goal is to understand the reasons behind the rise of hate speech and reactions to it; from its acceptability and underestimation to indifference and ignorance.

• Freedom of expression
• free speech
• hate speech
• social media

Hate speech has become some sort of a controversial buzz word of today, with many advocates of its regulation on one side, and many opponents on the other. Controversy of this kind is aggravated by the fact that by limiting and regulating hate speech, we erode the freedom of expression and make it a zero-sum game. Furthermore, there is no agreement on what precisely constitutes hate speech, in particular the speech that should be banned and punishable by law. Despite the fact that it can by no means be considered a new phenomenon, there is yet no universal definition of hate speech. However, different international covenants and documents have enshrined the principle of the protection of human dignity already in the 1960s by stating, among other, that all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin are declared an offence punishable by law (United Nations, Citation 1964 ). Article 20 of International Covenant on Civil and Political Rights (United Nations, Citation 1966 ) states that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.

ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters,

all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin,

the use of one or more particular forms of expression, namely the advocacy, promotion or incitement of the denigration, hatred or vilification of a person or a group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat of such person or persons and any justification of all these forms of expression – that is based on a non-exhaustive list of personal characteristics or status that includes ‘race’, colour, language, religion or belief, nationality or national or ethnic origin, as well as descent, age, disability, sex, gender, gender identity and sexual orientation.

Today most of the (but not only) European countries regulate, limit or ban hate speech, thus reflecting a post-WW2 commitment of States to the protection of human rights, to the promotion of the right to personal dignity and freedom from discrimination, as enshrined in many international covenants and declarations.

However, such laws were developed long before 1945 and for very different reasons. They were in fact aimed at protecting governments and repressing political dissent, and were modelled after the English 1661 Sedition Act (that in turn originated in the thirteenth-century instrument of sedition), which imposed punishment against anyone who wrote, printed or preached words against the King. Different laws limiting hateful speech and banning expressions of incitement against the state or certain religious groups, expressions of disapproval or ridicule of the country’s laws, expressions of discontent with the government, as well as defamation laws on honour insults existed in the late eighteenth century. The first modern hate speech codes were promulgated in France during the 1820s and 1830s, to oppose emerging socialist and workers movement. After the 1848–1849 uprisings in Germany, Prussia enacted a hate speech law in 1851, which later served as the basis for German penal code of 1871 (Goldberg, Citation 2015 , p. 482). It criminalized endangering the peace through the ‘incitement to violence of different classes of population’. German criminal code ( Citation 1998 ) criminalized hate speech against the state to enforce order, preserve public peace against political dissent, and to repress class, ethnic, national and political differences. Hate speech law was seen as a symbol of the struggle for power between the authority and the opposition.

Towards the end of the nineteenth century, the threat of antisemitism became tangible in Germany and to defend themselves, the Jewish activists gathered in an extra parliamentary defence and advocacy group. They started to promote a new interpretation of the article 130 by claiming that the Jewish minority represented a class deserving protection under article 130. By exposing antisemitic hate speech, they forced the law in a new direction, and ushered in a legal and political paradigm shift. Goldberg thus successfully shows that a new attitude to hate speech appeared already in the 1890s, which (contrary to the belief of most scholars, who argued the turning point happened no sooner than in the post-WW2 reaction to Nazism and Fascism) marks the first key turning point toward a human-rights model of hate speech law (Goldberg, Citation 2015 ). The aim of hate speech legislation has changed through time, as has the understanding of hate speech itself. In hindsight we can say that hate speech evolved from expressions of discontent, defamation, dissent, and critique of the authority, to include all types of identity-based forms of discriminatory expressions. Changes in society have gradually moved the concept of hate speech regulation from repression towards the protection of human rights. The end of WW2 with emphasis on democracy and the dignity of human life represents an important milestone in this evolution.

The development of media and communication technologies has opened the doors to a parallel virtual universe, where proliferation of hate speech is substantially easier, faster, cheaper and more difficult to combat. Hateful messages disseminated online have become very common and call for adequate response and adoption of targeted measures that take into account the specific nature of digital communication. One of the challenges is the imperative to remove hateful content from the web as soon as possible, to limit the potential damage inflicted on the target of hateful comments and to prevent empowering the perpetrators (Oboler in Gagliardone et al., Citation 2015 , p. 13). However, hate speech can be itinerant and can find expression elsewhere, even when the content is removed; its endurance is possible also because of the low cost, its potential for revival, and long-lasting relevance in particular spheres of discourse (Gagliardone et al., Citation 2015 , p. 14). Longevity of hateful comments online is better regulated in platforms such as Snapchat, where users’ comments disappear after a while, thus providing a shorter time exposure and a more limited circle of influence. Due to the fact that the internet is not governed by a single entity, and platforms such as Facebook or Twitter are privately owned, the regulation of content on the internet presents a substantial challenge, in particular due to the unprecedented increase in the use of derogatory language on social media.

A myriad of new challenges, such as migration crises, political upheavals, development of IT, all contribute to increasing social polarization and to an uninhibited use of hostile rhetoric. The language we are exposed to becomes subconsciously the language we use, the language we think in, and the language that constructs our reality. Language cannot be neutral – it reflects and structures our ideologies and worldviews. We respond to the images and language that surround us by recreating the same or similar images and patterns, using the same or similar language we have been exposed to. It is therefore safe to say that the influence of discriminatory language is not limited to the targeted group alone; it directly or indirectly affects all of us, as well as the entire social and belief system. Language is not merely an instrument for describing events, but a constituent part of events and can therefore influence political perceptions in a way that goes beyond its propositional content. Language is a tool of politics and is used not only to inform others about political issues, but also to persuade people in adopting specific courses of action in regard to these issues (Gorenc, Citation 2009 ).

In its broad definition, derogatory language includes any type of insinuation and allegation about members of a given social category that explicitly ridicules or insults them. One of them is hate speech, which represents an extreme, expansive and fast-spreading form of language discrimination (Cervone et al., Citation 2021 , p. 81). A ground-breaking work on immigrant groups (Mullen & Smyth, Citation 2004 ) reveals that derogatory labels are more numerous, more frequently used and more offensive, the smaller and the less familiar the social group is, and/or the lower its status in society. As observed by Stephan and Stephan ( Citation 2000 ), these minorities may be seen as symbolic threats to cultural norms and values, even if they do not pose concrete threats over limited resources such as jobs. Discursive research has identified the shift of hate speech in far-right political discourse, which turned from demonizing people to demonizing belief systems. Verkuyten’s ( Citation 2013 , p. 351) analysis of Geert Wilders’ anti-Muslim rhetoric reveals his consistent rejection of hate accusations by stating he is against Islam as ideology, but has nothing against Muslims as people. Such discursive strategy allows far-right groups to project their identity as reasonable and rational, and their hostility as morally justifiable (Cervone et al., Citation 2021 , p. 83).

prejudice perpetuation against minority groups (Bianchi et al., Citation 2019 )

maintenance of status hierarchies (Rosette et al., Citation 2013 )

legitimization of violence against outgroup (Fasoli et al., Citation 2015 )

norm and role compliance (Carnaghi et al., Citation 2011 )

ingroup cohesion (Douglas, Citation 2012 ).

Not all instances of derogatory language lead to physical violence; however, most forms of physical violence are preceded by verbal hostility. Furthermore, violence has different manifestations; physical, psychological, emotional, economic, and sexual violence are some of them. We cannot dismiss any as less harmful, just because it does not consist (at least initially) of physical abuse, even more so because the toll of verbal derogation can be seen in mental and physical health of victims. Derogatory language is also associated with risk behaviours, such as smoking, substance abuse and even attempted suicide. The research (Mullen & Smyth, Citation 2004 ) reveals higher probability of suicide among immigrant groups targeted by ethnophaulisms. The increasing use of hate speech also coincides with increases in the reported incidence of hate crimes in the world.

The influence of hate speech does not extend only to targeted victims, but affects also bystanders, who can become desensitized and consequently perceive it as less offensive and more acceptable (Soral et al., Citation 2018 ). Furthermore, derogatory language that bystanders are exposed to influences their own attitudes and behaviours, and causes their distancing from a targeted minority group and its members (Winievski et al., Citation 2017 ). It is thus clear that hate speech not only affects the victims, but society in general. Politicians and other influential public persons abuse of their power and reach, to use hate speech for specific purposes. They actively contribute to the polarization of society, divert attention of public to the most convenient culprit (e.g. immigrants, homosexuals, protesters, artists, intellectuals …), desensitize population and attack cohesion and general sense of community. Liberal democracies are supposed to give special protection to free speech; however, some types of speech can present a serious danger to social cohesion and democracy. This brings us to a dilemma whether to limit and regulate hate speech or allow for unrestricted freedom of expression, at the expense of potential discrimination of targeted groups.

Freedom of opinion and expression is a fundamental human right, protected in Article 19 of the Universal Declaration of Human Rights ( Citation 1948 ) and given legal force through all major international and regional human rights treaties. Footnote 1 International human rights law requires States to guarantee to all people the freedom to seek, receive or impart information or ideas of any kind, regardless of frontiers, through any media of a person’s choice. The right to the freedom of expression is not an absolute right (ECHR, Citation 2021 ), and under exceptional circumstances (e.g. incitement to violence, hate speech and racism, Holocaust denial and references to Nazi ideology), the State may restrict the right under international human rights law (Bychawska, Citation 2017 ); however, any restrictions on freedom of expression must be enshrined in law and precisely defined to serve a legitimate interest.

Hate speech triggers a confrontation of two important values, namely freedom of expression on one side, and the right of others to dignity and respect on the other. In the United States, the prevailing forces have mostly sided with unrestricted freedom of expression and against legal regulation of hate speech, referring to the First Amendment of the Constitution ( Citation 1791 ). One of the most recognized advocates of the freedom of speech, John Stuart Mill ( Citation 1978 , p. 59) claimed that the fullest liberty of expression was necessary if we wanted to explore the true limits of our arguments, and not the limits of what is socially acceptable. Otherwise, the price we have to pay for this sort of intellectual pacification is the sacrifice of moral courage of the human mind. However, Mill also believed that limits on freedom of expression are justified, but only in the cases when preventing harm to others ( Citation 1978 , p. 36).

Countries define and understand freedom of expression in different ways, and cannot agree on when and how this freedom should be protected and when instead it should be limited (Wimmer, Citation 2006 ). For a very long time, freedom of expression has been considered a precondition for a functioning and democratic society and has therefore enjoyed legal protection, with the exception of particular situations. Germany, for example, decided to limit the freedom of expression in the aftermath of the WW2, when censorship of pro-Nazi propaganda seemed the only moral and possible reaction. Laws banning the buying and selling of literature such as Hitler’s Mein Kampf , as well as showing Nazi propaganda movies, e.g. The Triumph of the Will , were supported by many and passed in Parliament (Oppenheimer, Citation 1998 ).

The complex balancing between the need to guarantee people the right to freely express themselves and to advocate their ideas on one side, and the defence of other people’s right to be free from verbal abuse and to be protected as equal members of a society on the other, is not easy. Freedom of expression is the lifeblood of democracy; it facilitates open debate, a proper consideration of diverse interests and perspectives, and the negotiation and compromise necessary for consensual policy decisions. Efforts to suppress expression can allow unseen problems to fester and erupt in far more dangerous forms, which may lead to violence instead of ensuring peace and stability. The NGO Article19 Footnote 2 believes that hate speech should be met at all times by counter claims, arguments and discussion. Suppressing it not only fails to resolve hatred but drives it underground and possibly encourages acts of violence (Coliver et al., Citation 1992 ). When responding to hate speech, the States should not limit themselves to sanctioning, and should instead search for and target the underlying causes that drive hate speech, such as prejudice, intolerance, lack of information and similar. They should use positive measures to promote inclusive and intercultural dialogue, social plurality, respect and tolerance. Gagliardone et al. ( Citation 2015 ) believe that counter speech constitutes a better way of blocking potential harm caused by hate speech. This is advocated also by Lepoutre ( Citation 2017 , p. 852), who admits that neither bans nor counter speech are without limitations and cannot be applied to all instances. What Lepoutre argues for is to rethink the use of bans in situations that might be better suited for counter speech. It seems that even stringent legislation regarding hate speech focuses only on the extreme cases of its presence in society, leaving unpunished or unaddressed the cases of hateful expressions that do not constitute an offence under international law or those that do not qualify for criminal or civil sanctions, but are nevertheless offensive and problematic with a view to civility, tolerance and respect for others. It is therefore obvious that limiting hate speech with legal bans and restrictions does not suffice and we, as society, need to address it on all levels of social endeavour. Gagliardone et al. ( Citation 2015 ) propose four types of initiatives to counteract the emergence and dissemination of hateful messages: monitoring and discussing hate speech; mobilizing civil society; lobbying private companies; media and information literacy campaigns.

Hate speech should be banned because it is inconsistent with the fundamental values of liberal democracy, such as equal respect for all people. Waldron ( Citation 2010 ) disagrees with the view that the targets of hate speech should learn to put up with it, and that the freedom of speech is more important than minimizing the feelings of anxiety or distress of the targets. Hate speech namely possesses harmful tendencies that endanger social cohesion and injure the dignity of targeted groups. It should be banned due to the general apprehension of its effects and not only when there is evidence of substantial harm, caused to social order or its victims (Waldron Citation 2010 , p. 1650). This reasoning leaves a lot of (too much) room for manoeuvre to governments and legislators who decide whether an instance of hate speech requires legal intervention, as can be seen in various legal practices and court proceedings in different countries. One of the claims underpinning the idea that hate speech does not need special, additional regulation argues that instances of harmful and harm causing speech are already regulated and banned in various other legal instruments (Boonin in Van Mill, Citation 2021 ).

Young people are increasingly becoming targets of different forms of cyberviolence, and with unprecedented surge in the use of digital technologies due to the Covid 19 restrictions, the negative consequences of cyber exposure have multiplied. The empirical part of the article draws from the answers of Slovenian social sciences students participating in an online survey on hate speech. Our goal was to find out how young people perceive and understand hate speech and its manifestations and how (if) they react to it. We were interested in revealing the channels of hate speech dissemination, the role and accountability of opinion leaders as hate speech perpetrators, as well as possible solutions. We examined how familiar the respondents were with programs and platforms addressing hate speech, and how efficient they believe non legislative measures against hate speech can be.

Expression of opinions and ideas that are inherently discriminatory and generally directed against disadvantaged groups (ethnic, national, religious, cultural, sexual, etc.) or against individuals who, because of their personal circumstances, belong to such groups. Hate speech dehumanizes those against whom it is directed and may also be intended to humiliate, intimidate or incite violence.

Promotion of hatred and violence against a certain group or its members based on their race, nationality, ethnicity, sexual orientation.

Active incitement to violence against a certain group or its members based on their race, nationality, ethnicity, sexual orientation.

Public promotion of hatred, violence and intolerance against certain social groups.

These are unemployed people living at taxpayers’ expense, especially self-proclaimed cultural producers who receive unjustified financial support instead of working.

Immigrants violate legislation and illegally cross the borders. They attack the rule of law and sovereignty of the country they are entering.

LGBTQ identity is not natural and should be diagnosed as a disease.

All the erased are invited to a ball, where Jelinčič Footnote 4 will play the machine gun.

There are things one simply should hate. I believe Catholic church is something you have to hate. I feel it is my duty as a citizen.

Approach allowed max. 500 m to the border. Whoever comes closer will be shot, God will recognize his own.

Most respondents identified hate speech in statements inciting to violence (no.4, 70% and no. 6, 83%; 40% of the former and 69% of the latter believe statements promoted violence against a certain social group). Another statement identified as hate speech by 76% of respondents targeted LGBTQ community; 42% believed the statement promoted hatred to a specific social group and 32% that it promoted intolerance to a specific social group. This shows that despite negative propaganda by authorities, the claim that LGBTQ identity is a disease, sounds too anachronistic and discriminatory. Answers to statement no. 2 show some inconsistency in the respondents’ attitude to immigrants, as only 56% answered the statement is an instance of hate speech and openly discriminates a specific social group. It seems that intolerance is not perceived as bad enough to activate feelings of solidarity in respondents. Statement no. 5 was labelled as hate speech by 69%; the majority of them believed the statement incited hatred against a particular social group. The Catholic church was thus identified as a targeted social group. The most divisive statement (no. 1) targeted independent cultural producers. Forty-six percent of respondents labelled it as hate speech and 48% believed it could not be classified as such. It is important to say that for the past two years independent culture producers have been constantly under attack of government and its supporters, and similar statements have become a standard in political discourse. This could explain the perception of respondents, for it has been proven that hate speech also exerts influence on bystanders who become accustomed to it (Soral et al., Citation 2018 ) and actually dissociate themselves from the targeted group (Winievski et al., Citation 2017 ). It was interesting to see the perception of respondents regarding the presence of hate speech in media. Thirty-six percent believed the share of hate speech in social and traditional media is similar, 50% believed there is more hate speech in social media, and 7% believed there is less hate speech in social media. Eighty-five percent of respondents believed the level of hate speech in social media would decrease, were it mandatory to sign comments with full name. Sixty-two percent of respondents also believed that opinion leaders and politicians set an example with their behaviour and significantly influence public perception of what is or is not acceptable. Eighty-seven percent of respondents believed that unsanctioned use of hate speech by opinion leaders and politicians is reflected in hateful public discourse, and 89% believed that politicians and opinion leaders should use a more respectful discourse. Sixty-four percent of respondents supported the idea that hate speech should be prosecuted and believe this would not represent a form of censorship.

The last part of the survey examined how familiar the respondents were with the activities of civil society and NGOs in the field of hate speech regulation. The hotline Spletno oko’ (‘WebEye’) is a part of Safer Internet Program, primarily focused on the prevention of child abuse, which includes also other forms of violent behaviour and expression, such as hate speech. People can report instances of hate speech to ‘Spletno oko’, and if the reported instance presumably contains illegal elements, it is referred to police. Compared to 2019, ‘Spletno oko’ reported a threefold increase in cases of illegal hate speech. Most of them alluded to other personal circumstances, such as political background. There was about ¼ of xenophobic speech mostly targeting immigrants, and about 13% was hate speech on a religious basis. In most cases the hateful expression took an extreme form by promoting violence, inciting to murder, or extermination of an entire social group (or its members). In 33% of cases hate speech included denial of holocaust and glorification of war crimes. Sixty-three percent of reported contents were published on news portals, a third on social media, and the rest on internet forums (Valentič & Motl, Citation 2020 ). Another initiative aimed at exposing and thus curbing the dissemination of hateful content was a grassroots initiative, the webpage ZLOvenia (EVILSlovenia), where instances of hate speech were exposed. It was particularly active at the time of migration crisis in 2014, when extremely hateful expressions flooded the web. Authors of hate speech were publicly exposed with their full name and photo on the webpage, as well as on printed and affixed posters on the walls or billboards. The page was supposed to close down when things changed for the better, but actually stopped existing already in 2016. Contrary to the common belief that hate speech perpetrators disregard the reaction of public and engage in the dissemination of hateful content despite it, their exposure on the webpage and on posters convinced many to contact the webpage, express regret and ask for the removal of their hateful post together with personal information. However, survey results regarding Spletno oko and ZLOvenija are pessimistic. If the lack of information about the webpage ZLOvenija, which ceased to exist in 2016, can be explained by the young age of our respondents at that time, we cannot overlook the fact that only 18% of the respondents knew about Spletno oko. Judging by the survey response, it is not easy to recognize and implement non-legislative measures aiming at hate speech regulation.

The last group of questions referred to active response (or the lack of it) of survey participants to hate speech. Only 38% have already reacted to hate speech (1% reported it to Spletno oko, 1% to police, 8% to the editor of webpage or media outlet, and 28% responded directly to the author of hateful comment or post). 54% of respondents have never decided to react, as they believe that: nothing would change (35%), the editor or police would not react (13%), they could be in danger if reporting (4%), hate speech does not represent a problem (2%).

Based on the survey results we can say the proposals of Gagliardone et al. ( Citation 2015 ) should be seriously considered, addressed and included in the agenda of politicians, educators, media, civil society, and NGOs, which must all activate and strengthen their response to hate speech. Media and information campaigns must be promoted in educational institutions of all levels, while children and youth should be taught how to recognize and react to hateful messages, and why it is wrong to perpetrate or condone hate speech. Furthermore, hate speech perpetrated by politicians should not be tolerated and should be strictly sanctioned.

Already the first institutionalized forms of communication, e.g. religion, have limited the right of individuals to freely express their opinion regarding the matters of authority and the ruling elites (Splichal, Citation 1997 , p. 351), and for a long time the focus of debates on the unlimited freedom of expression, regardless of the content, reflected this history of repression. However, with time and especially in response to the development of media and communication technologies, ‘freedom of expression’ started to show its uglier face, with the aim of discriminating against and offending particular social groups, its members, or individuals. Due to easy access, low cost and anonymous participation, social media have become the leading platform for public debate. From inclusive and seemingly democratic beginnings, they have evolved into platforms and algorithms that follow our online presence, analyse our interests, push targeted advertisements, and help create echo-chambers of like-thinking actors. They drive social polarization to its extreme and represent a fast and efficient highway for the dissemination of hate speech and brutalization of public discourse. The more hateful public discourse people are exposed to, the more accustomed and less empathic they become. This can explain low reaction rates to hate speech and the lack of empathy for the targeted groups revealed also by the results of the conducted survey. Respondents have identified the harmful consequences of hateful discourse in which Slovenian politicians and public persons regularly engage. They supported the claim that politicians abuse their influence to spread hateful messages without inhibition and set an example to the public, which reacts by reproducing the same discourse and by distancing itself from the victims of hate speech and not from the perpetrators.

In recent years the world has been faced with serious challenges that strengthen the sense of insecurity and further polarize societies. ‘Post truth’ reality makes it increasingly difficult for people to distinguish truth from lies, and hate speech rides the wave of manipulation and arbitrary interpretation of truth. In theory, mature democracies should be able to address the problem of hate speech with measures other than legislation and criminalization, namely by educating and informing people about hate speech, its manifestations and its causes. However, to bridge the gap between theory and reality, the states should implement positive measures conducive to tolerant and inclusive dialogue and behaviour. In doing so they need the support of an empowered civil society, able and willing to act upon all social manifestations of hate and intolerance by exposing haters as an extreme and despicable minority and by promoting the values of a democratic, pluralistic and respectful society. We are civil society.

No potential conflict of interest was reported by the author.

Notes on contributors

Nina gorenc.

Nina Gorenc is a Lector of English and Italian language, and a PhD in Political Science. Her interests lie in interdisciplinary manifestations and intersections of language, political science and communication, which is also reflected in her academic career. Her research interests span from American presidency, political rhetoric, cultural diplomacy, to discourse & content analysis, post truth society and hate speech. She has served as the chair of Language department at the Faculty of Social Science since 2015, where she is also employed. Her professional, research and educational activities are divided between Slovenia and Italy, where she regularly participates in research and educational projects, or as a visiting scholar. She lives with her family in Ljubljana, a perfect destination for sports and outdoor activities that she loves.

1 See Article 19 of the International Covenant on Civil and Political Rights (ICCPR); Article 9 of the African (Banjul) Charter on Human and Peoples’ Rights (ACHPR); Article 13 of the American Convention on Human Rights (AmCHR), and Article 10 of the European Convention on Human Rights (ECHR).

2 ARTICLE 19 is an international human rights NGO promoting freedom of expression and freedom of information worldwide.

3 The erasure from the register of permanent residents implemented by the administrative bodies of the Republic of Slovenia was an arbitrary act that did not have any basis in the law, as was established by the Constitutional Court. The erasure mainly (but not exclusively) affected people born in other republics of the former Yugoslavia who had Yugoslav citizenship and also citizenship of another republic of the former Yugoslavia, but lived in the former Socialist Republic of Slovenia where they had permanent addresses. When Slovenia became an independent country, on 25 June 1991, citizens of the former Socialist Republic of Slovenia automatically became citizens of the new country, the Republic of Slovenia. Further, according to Article 40 of the Citizenship of the Republic of Slovenia Act, all citizens of other republics of the former SFRY with permanent addresses in the Socialist Republic of Slovenia had the right to apply for Slovenian citizenship within six months from the date of independence. Those who did not obtain citizenship (because they failed to apply for whatever reason, or their application was refused or discarded, or the procedure was terminated), lost their permanent residence status. They were deprived of their permanent residence status permanent resident status: https://www.mirovni-institut.si/izbrisani/en/about-erasure/index.html

4 Zmago Jelinčič Plemeniti is a Slovenian politician, founder and president of Slovenian National Party (March 1991), which won more than 11% of votes in the first elections to the Slovenian National Assembly in 1992, largely due to his hateful rhetoric against people from former Yugoslavia.

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Freedom of expression

WashU has a proud history of promoting freedom of expression. The free exchange of ideas is a cornerstone of higher education and we are committed to upholding this fundamental value.

Lively intellectual conversations are as commonplace as comments about the weather. As chancellor, it’s important that I help cultivate a campus community in which everyone has a voice, the freedom to exercise their rights and duties to speak out against injustice and inequity, and an opportunity to learn from one another without insult or intimidation. Chancellor Andrew D. Martin, from “Critical thinking, Free Speech, and Civil Discourse”

To clarify our commitment, the Faculty Senate Council adopted the following statement in 2016. This statement is substantially similar to the 2014  Chicago Principles :

Statement of principle regarding freedom of expression

Washington University in St. Louis begins its mission statement by asserting that the institution’s primary aims are “to discover and disseminate knowledge, and protect the freedom of inquiry through research, teaching and learning.” A commitment to the open exchange of ideas and information is fundamental to achieving these goals. Consequently, the university affirms its unwavering commitment to freedom of expression and the free exchange of ideas.

Statement of Principle Regarding Freedom of Expression (PDF)

Other WashU policies regarding freedom of expression :

• Policy on Academic Freedom, Responsibility and Tenure
• Balancing Rigor and Respect in the Learning Environment
• Demonstrations and Disruption
• Social Media Policy

Statements from university leadership through the years

“To fulfill that critical aspect of our mission — to truly make a positive difference, individually and collectively — we must be a community in which every one of us feels empowered to offer ideas and perspectives. We charged our faculty with the important task of developing this principle to help us sustain an open, creative, innovative and intellectually stimulating environment on our campuses.”

— Former Chancellor Mark S. Wrighton

“As an institution, we affirm the importance of academic freedom and the rigor it provides to our learning environments. At the same time, we remain mindful of the varied responses that subject matter can evoke in learners, especially those who have experienced trauma. We believe that upholding the values of academic freedom and maintaining respect for individual responses to course material are both important goals.”

— Standing Committee on Facilitating Inclusive Classrooms

“In the 1950s, when many universities caved in to pressure to dismiss faculty for political reasons, Washington University received national recognition for supporting the rights of those with very unpopular views. Thus, the university safeguards the efforts of faculty and students who seek to come closer to the truth and then report what they find. This protection, called academic freedom, not only serves the interests of the individual, but it also promotes the well-being of society. … We humans will always be wrestling with the extent and limits of our freedoms and of our responsibilities. To do so with civility and respect for the views of others is in Washington University’s tradition and remains our continuing challenge.”

— Former Chancellor William H. Danforth

Faculty experts

“Our debates over free speech are in many ways akin to conflicts over reckoning honestly with the painful parts of our nation’s history, like slavery and structural racism or violence and discrimination toward native Americans, immigrants, and others. A commitment to free speech, even when it hurts, is parallel to a commitment to free inquiry and open-eyed attention to the worst as well as the best we have been as a people.”

— R. Marie Griffith

“Protecting free speech is essential for social progress. Speaking and writing are the most potent tools that liberal democracy offers for changing allocations of political and social power.”

—  Greg Magarian, Washington Magazine, Sept. 9, 2019

“There have probably never been so few government restrictions on expression in any society at any point in human history. But at the same time, the United States is experiencing an undeniable free speech crisis. People are trying to silence each other; people aren’t listening to each other. Many times, it seems that different members of our society are living in parallel, almost untouching realities. If we’re interested in building a cohesive, democratic society that produces good governing decisions more often than not, when it comes to the free speech side of things, I think we’re in a very bad place.”

—  Neil Richards, St. Louis Public Radio, Jan. 28, 2021

“Political disruption can compel people to pay attention to problems that they would rather ignore.”

— Clarissa Rile Hayward

“Free speech is about us and who we are. It’s a garbage-in, garbage-out problem. We can talk about lots of people and actors we want to blame — social media, private companies, government — but at the end of the day, all of these actors are responding to what we do. And they’re complicating it with algorithms and other motives, but at the end of the day, we’re forming the people we are, and that’s a problem.”

—  John Inazu, St. Louis Public Radio, Jan. 28, 2021