short summary of freedom of speech

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First Amendment

By: History.com Editors

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

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

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

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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• First Amendment

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The First Amendment  of the  United States Constitution  protects the right to freedom of religion and freedom of expression from government  interference. It prohibits any laws that establish a national religion, impede the free exercise of religion , abridge the freedom of speech , infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit  citizens from petitioning for a governmental redress of grievances. It was adopted into the  Bill of Rights  in 1791. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress . Furthermore, the Court has interpreted the  Due Process Clause  of the  Fourteenth Amendment  as protecting the rights in the  First Amendment  from interference by state governments. 

Freedom of Religion

Two clauses in the First Amendment guarantee freedom of religion . The  Establishment Clause  prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state." However, some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of " blue laws " is not prohibited. The  Free Exercise Clause  prohibits the government, in most instances, from interfering with a person's practice of their religion.

Freedom of Speech / Freedom of the Press

The most basic component of freedom of expression is the right to freedom of speech. Freedom of speech may be exercised in a direct (words) or a symbolic (actions) way. Freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights . The right to freedom of speech allows individuals to express themselves without government interference or regulation . The Supreme Court requires the government to provide substantial justification for interference with the right of free speech when it attempts to regulate the content of the speech. Generally, a person cannot be held liable , either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements.

A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more unprotected and less protected categories of speech see  advocacy of illegal action ,  fighting words ,  commercial speech , and  obscenity . The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the  forum  in which it takes place.   

Despite the popular misunderstanding, the right to freedom of the press guaranteed by the First Amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.

Right to Assemble / Right to Petition

The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the  First , Fifth , and Fourteenth Amendments. Freedom of assembly is recognized as a human right under article 20 of the Universal Declaration of Human Rights . This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating with groups that engage in and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with First Amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.

The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through litigation  or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.

Federal Material

U.s. constitution.

• Fifth Amendment
• Fourteenth Amendment
• Freedom of Expression: Is There a Difference Between Speech and Press?
• Religion and Expression
• Right of Association

Federal Judicial Decisions

• Historic Constitutional Law Decisions
• Recent First Amendment Decisions -  Religion ,  Press ,  Speech
• Mahanoy Area School District v. B.L.
• LII Supreme Court Bulletin

State Material

State judicial decisions.

• First Amendment Decisions
• Appellate Decisions from Other States

International Material

Conventions and treaties.

Human Rights Treaties

Key Internet Sources

• The First Amendment Encyclopedia (Middle Tennessee State University)
• Freedom of Expression (National Endowment for the Arts)
• Freedom Forum First Amendment Center
• EFF Legal Guide for Bloggers
• LII Sitewide: First Amendment
• Supreme Court Cases Overview 2000 – 2019

Additional Topics

• Category: Individual Rights
• Category: Constitutional Law

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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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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
• Knight First Amendment Institute at Columbia University
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ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

Acknowledgments

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

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

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Chapter 8: The Latitude and Limits of Free Speech

Schenck v. United States (1919) , Abrams v. United States (1919)

The First Amendment to the U.S. Constitution says, “Congress shall make no law. . . abridging the freedom of speech.” It expresses an absolute prohibition of legislation that would deny this freedom. Constitutional protection of this fundamental civil liberty, however, has not been absolute. Congress has enacted laws limiting freedom of speech under certain conditions, and the federal courts, in certain cases, have endorsed these restrictive acts.

It took a very long time, more than 125 years after the ratification of the First Amendment in 1791, for the first cases about federal laws limiting free speech to arrive at the U.S. Supreme Court. During the years that America participated in World War I, from April 6, 1917, until November 11, 1918, Congress enacted laws limiting freedom of speech in order to protect national security against spies, saboteurs, and obstructers of the national war effort.

Government leaders and many in the general public also believed that the Communist Party that came to power in Russia during the 1917 Russian Revolution, one year before the end of World War I, posed a threat to America. Russia’s Communist rulers advocated subversion and the overthrow of non-communist governments throughout the world, which led many Americans to suspect that Socialists and Communists in the United States would collaborate with the international communist movement against the interests of the United States. Thus, laws enacted to protect national security during World War I were also used during and after the war to curtail activities of American supporters of communism and socialism.

In June 1917, barely two months after the nation’s entry into World War I, Congress passed the Espionage Act, which enabled the federal government to punish certain kinds of dissent against its wartime policies. The Espionage Act provided that

“whoever. . . shall willfully make or convey reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever. . . shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States . . . shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years or both.”

In May 1918, Congress passed the Sedition Act, which augmented the already strong powers provided in the Espionage Act of 1917, by outlawing any speech or writing that in any way might impugn and undermine the U.S. government, flag, military forces, or Constitution or intend to promote resistance against federal government policies, such as the drafting of able-bodied men into the armed forces.

Many Americans believed the Espionage and Sedition Acts violated the Constitution’s First Amendment guarantees of free speech and press. But from June 1917 until the middle of 1921, more than two thousand people were prosecuted for violating these restrictive federal laws, and more than one thousand were convicted. Among the several convictions appealed to the U.S. Supreme Court, those of Charles Schenck and Jacob Abrams became significant cases in the development of the Court’s doctrine on the latitude and limits of free speech. Schenck’s case originated with his August 1917 arrest for violating the Espionage Act. Abrams’s case began one year later, in August 1918, when police arrested and jailed him and his associates for breaking the law under the Espionage and Sedition Acts.

Schneck v. United States (1919)

• 249 U.S. 47 (1919)
• Decided: March 3, 1919
• Opinion of the Court: Oliver Wendell Holmes Jr.

Charles Schenck, general secretary of the Socialist Party in the United States, was an outspoken critic of America’s participation in World War I. To express opposition to the war, Schenck and his Socialist Party associates printed and mailed about 1,500 leaflets to men eligible for the draft. The leaflets denounced the draft as involuntary servitude and therefore a violation of the Thirteenth Amendment to the Constitution. The pamphlet also argued that participation in World War I did not serve the best interests of the American people. It claimed that conscripting men into the armed forces to fight in the war was a “monstrous wrong against humanity in the interest of Wall Street’s chosen few.”

Schenck was arrested and convicted of violating the Espionage Act. At his trial, Schenck claimed that his First Amendment right to free speech had been violated. For the first time, the U.S. Supreme Court directly faced the question of whether the federal government might limit speech under special circumstances.

The Court unanimously decided against Schenck, upholding his conviction and ruling that the Espionage Act did not unconstitutionally limit his First Amendment rights of free speech and press. Writing for the Court, Justice Oliver Wendell Holmes Jr. presented a novel test to determine when and how the government might limit free speech. When spoken or written words “create a clear and present danger” of bringing about evils that Congress has the authority to prevent, said Holmes, then the government has an obligation to stop them. Holmes argued that Schenck’s actions had created the kind of circumstance that the federal government could constitutionally prevent through the Espionage Act.

Holmes next provided one of the most memorable examples ever used in a Supreme Court opinion to clarify an argument. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Thus, Holmes linked the latitude or limits of political speech to the “circumstances in which it is done.”

Holmes argued that Schenck and his associates intended to influence others from compliance with the federal draft law. If enough men had responded favorably to Schenck’s message, then the federal government would have been prevented from carrying out the will of the people, endorsed by their representatives in Congress, who had voted overwhelmingly to participate in the war in order to defend critical national interests. Schenck’s attempt to severely obstruct the war effort was certainly among “the kind of substantive evils that Congress had a right to prevent,” wrote Holmes.

Under different circumstances, such as those in peacetime, Schenck’s ideas would have been protected by the Constitution’s First Amendment, said Holmes. But urging men to resist the draft during a time of war presents a “clear and present danger” to the nation. Thus Holmes declared, “When a nation is at war, many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be protected by any constitutional right.”

Before the Schenck case, both state and federal courts had relied only upon a doctrine called “the bad tendency” test to adjudicate freedom of speech cases. If speech tended to have bad effects, then it might be constitutionally restricted. For example, speech that threatened public order, subverted established standards of morality, or obstructed national defense in wartime could be legislatively restricted. Further, there was a presumption of constitutionality for laws limiting speech according to the “bad tendency” test, if the restrictive legislation clearly reflected traditional community standards.

In two cases decided only a few days after Schenck , Court watchers were surprised by Justice Holmes’ opinions. In Frohwerk v. United States (1919) and Debs v. United States (1919), Holmes based the Court’s decisions only on the conventional “bad tendency” test and did not mention the “clear and present danger” doctrine.

The Court unanimously upheld the conviction of Jacob Frohwerk, who had written articles for a German-language newspaper that urged resistance to the military draft. Holmes said that Frohwerk’s words violated the Espionage Act, because they might “be enough to kindle a flame of resistance.” Indeed, this was a “bad tendency” but Holmes did not make a causal connection to a particular circumstance, as his “clear and present danger” test made necessary.

The Court also unanimously upheld the conviction of Eugene Debs, the leader of the American Socialist Party. Debs had delivered a speech filled with socialist ideology in Canton, Ohio. He criticized the very idea of war and advocated resistance to the government’s World War I policies. Debs said, “I would oppose war if I stood alone.” Further, he argued that the war benefited wealthy capitalists while harming everyone else. Holmes concluded that Debs’s words “had as their natural tendency and reasonable probable effect to obstruct the [military] recruitment service.” But Holmes did not seem to care that no direct causal connection could be made between Debs’ theoretical expressions of socialist ideology and behavior that might practically obstruct the government’s military operations. Because the “bad tendency” test did not require evidence of a direct link between particular speech and unlawful behavior, prosecutors and judges used it to facilely and unsubstantially impose rather strict limitations on First Amendment freedoms.

Leading legal scholars and commentators who had praised Holmes for his promising new “clear and present danger” doctrine in Schenck criticized him and the Supreme Court for eschewing it in the Frohwerk and Debs decisions. For example, Harvard professor Zechariah Chafee wrote in the June 1919 issue of the Harvard Law Review that Holmes’s “clear and present danger” doctrine had the potential through application and refinement in future cases to make “the punishment of words for their bad tendency impossible.” Chafee was disappointed that Holmes and the Court relied only on the “bad tendency” test in Frohwerk and Debs .

Ernst Freund, a law professor at the University of Chicago, wrote an article for The New Republic to emphatically express disappointment in the Court’s Debs opinion. Freund criticized Holmes’s opinion for the Court because it upheld Debs’s conviction merely on an assumption, but without hard evidence,  that his speech was somehow connected to the “bad tendency” of obstructing the draft. Freund charged there was “nothing to show actual obstruction or an attempt to interfere with any of the recruitment process.” Thus, those who had used the “bad tendency” test against Debs had decided against him by merely “guessing” about “the tendency and possible effect” of Debs’s speech. This manner of decision making offered flimsy and whimsical protection, instead of solid security, for the individual’s First Amendment rights. Freund urged the Court to return to the “clear and present danger” doctrine so that it might be improved and developed into a just test for determining the breadth and limits of free speech.

Holmes heeded the critical responses of scholars to the Court’s March 1919 free speech decisions. For example, he read carefully what Zechariah Chafee and Ernst Freund wrote in the Harvard Law Review and The New Republic , and he met with Professor Chafee and other legal experts and scholars to discuss free speech issues during the summer of 1919. In particular, Holmes paid close attention to Chafee’s advice about developing the “clear and present danger” doctrine to establish more clearly the line between speech that is protected by the First Amendment and that which is not. Chafee also urged Holmes to emphasize the social and political importance of a broader scope for freedom of speech. Thus, in November 1919, when the Supreme Court considered its next free speech case, Abrams v. United States , Justice Holmes was prepared to think and write anew about constitutional issues of freedom of speech.

Abrams v. United States (1919)

• 250 U.S. 616 (1919)
• Decided: November 10, 1919
• Opinion of the Court: John H. Clarke
• Dissenting Opinion: Oliver Wendell Holmes Jr. (Louis D. Brandeis)

The case of Jacob Abrams began with his arrest in New York City on August 23, 1918. Abrams and several friends had written, printed, and distributed copies of leaflets that severely criticized President Woodrow Wilson and the U.S. government. The leaflets opposed Wilson’s decision to send a small American military force to Russia during the civil war there, which followed the communist revolution of 1917. The Communists, led by Vladimir Lenin, were fighting against anticommunist Russians and various foreign military forces to retain control of the government. Abrams’s leaflets urged American workers to walk off their jobs in protest against President Wilson and the U.S. government and in support of the new communist government in Russia.

Abrams and his friends were arrested and convicted for violating the Espionage Act of 1917 and the Sedition Act of 1918. They claimed, however, that their First Amendment rights had been violated because both the Espionage and Sedition Acts were unconstitutional infringements of free speech. By a vote of 7–2, the Court upheld the conviction of Abrams and his friends.

Writing for the Court, Justice John H. Clarke cited the Schenck decision as precedent and invoked the “bad tendency” test to support the ruling against Abrams. Justice Clarke wrote that “men must be held to have intended and to be accountable for the effects which their acts were likely to produce.” In particular, Clarke used the “bad tendency” test to argue that if workers had followed the call of Abrams’s leaflets to walk away from their jobs in a general strike, then the production of munitions would have been interrupted, thereby impairing the U.S. government’s ability to defend the country in wartime. Clarke’s opinion ignored the fact that Abrams’s message did not influence workers, and there was no strike in protest of American government policies. The mere possibility of such a bad effect was sufficient, according to Justice Clarke, to justify strict limitation of a person’s constitutional right to free speech.

Justice Holmes, joined by Justice Louis D. Brandeis, wrote a strong dissent, in which he developed his “clear and present danger” doctrine as Zechariah Chafee and others had urged him to do. He completely repudiated the “bad tendency” test and refined his “clear and present danger” doctrine to require an immediate or “imminent” harmful effect as the only justification for restricting the content of speech.

Holmes recognized that the government had the right to protect itself against speech that immediately and directly threatened the security and safety of the country and its people. He argued that the First Amendment protects the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Holmes emphasized that a “clear and present danger” sufficient to restrict free speech could not exist unless there was an impending lawless action connected directly to the words of a speaker or writer. Holmes concluded that Abrams’s actions and intentions were not an imminent danger sufficient to justify limitation of his constitutional right to free speech.

Justice Holmes concluded his dissent with a compelling theory of free speech in a constitutional democracy. Arguing for a “free trade in ideas,” is the theory of our Constitution. It is an experiment, as all life is an experiment.”

The Court’s opinion in Abrams prevailed in the short run, but Holmes’s dissent eventually influenced the Court. Today, it is recognized as the foundation for contemporary constitutional doctrine on the individual’s right to free speech.

The fate of those victimized by the Espionage and Sedition Acts varied. Most served their sentences, but Eugene Debs, a national celebrity of sorts, was pardoned by President Warren G. Harding in 1921. Jacob Abrams and his associates were less fortunate. Upon completion of their prison sentences, they were deported, at their own expense, to Soviet Russia. However, the land they had imagined as a “paradise for workers” turned out to be more like hell for them. They had little latitude for freedom of expression or any other kind of civil liberty under the totalitarian regime of the Soviet Union, which also eventually deported them.

From 1919 until his retirement from the Court in 1932, Justice Holmes continued to argue for the refined version of the “clear and present danger” doctrine expressed in his Abrams dissent. However, the Court did not use this doctrine to uphold a freedom of speech claim until 1937, in Herndon v. Lowry , when by a narrow vote of 5–4 the free speech rights of an American Communist Party member were protected. In the 1969 case Brandenburg v. Ohio , the Court again applied the ideas about free speech first expressed by Holmes in the 1919 Abrams case. The Court unanimously upheld the free speech rights of a Ku Klux Klan leader and struck down a state of Ohio law restricting speech that had a tendency to cause public harm. Free speech rights had become broad enough to protect even a despicable racist message, which was constitutionally permissible unless it could be demonstrably and immediately linked to lawless behavior.

Based on everything we know about Holmes, it is certain that he would have rejected the contemptible racist speech of a Ku Klux Klan leader, but he would have hailed the latitude for civil liberty afforded even such a person. Holmes, at the peak of his legal career, came to believe that the best way to fight a flawed message was to refute it with superior ideas in a constitutionally protected public arena of free-flowing opinion. And it seems beyond doubt that Holmes would have been pleased that his dissent in the 1919 Abrams case was the foundation of the Court’s 1969 opinion in Brandenburg . Today’s constitutional law broadly protecting free speech can be linked to the fertile mind of Justice Oliver Wendell Holmes Jr.

“Free Trade in Ideas”

Oliver Wendell Holmes Jr. is among the most remarkable people ever to serve on the Supreme Court. A heroic medal-winning soldier in the U.S. Army, three times wounded during the Civil War, he served as a highly respected associate justice of the Supreme Court from 1902 until his retirement in 1932. Born in 1841 in Boston, Massachusetts, Holmes died in 1935 in Washington, D.C., and was buried with other military veterans in the national cemetery at Arlington, Virginia.

Holmes was an avid reader of books about literature and philosophy and had a keen intellect and a memorable style of speaking and writing. Many of his Supreme Court opinions, both for the Court and in dissent, are exemplars of a literary style that both informs and inspires the reader. In his later years on the Court, Holmes became known as a champion of the constitutional right to free speech, and he wrote many quotable phrases about it in dissents against the Court’s majority, such as this one in United States v. Schwimmer (1929): “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought— not free thought for those who agree with us but freedom for the thought that we hate.”

Many experts in constitutional law consider Holmes’s dissent, below, in Abrams v. United States to be the best legal defense of free speech ever written by an American. A sterling example of profound constitutional thought and eloquent literary style, Holmes’s dissent in Abrams set a constitutional standard that eventually won enduring endorsement from the Supreme Court.

I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Froherk and Debs . . . were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing however, might indicate a greater danger and at any rate would have the quality of an attempt . . . But it seems pretty clear to me that nothing less than that would bring these papers within the scope of the law . . .

I do not see how anyone can find the intent required by the statute in any of the defendants’ words . . .

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

Mr. Justice Brandeis concurs with the foregoing opinion.

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7 things you need to know about the First Amendment

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

• The five freedoms it protects: speech, religion, press, assembly, and the right to petition the government. Together, these five guaranteed freedoms make the people of the United States of America the freest in the world.
• Before agreeing to accept the Constitution, the Founders of our democratic republic demanded that these freedoms be protected by an amendment to the original document – the First Amendment.
• There’s no “legal age” you have to reach to exercise your First Amendment freedoms. They are guaranteed to you the day you’re born. There’s also no citizenship requirement for First Amendment protection. If you’re in the U.S., you have freedom of speech, religion, press, assembly and petition.
• The First Amendment is neither “left-wing” or “right-wing.” It can be used to push for social and political change, or to oppose change. The First Amendment is for everyone.
• The First Amendment protects us against government limits on our freedom of expression, but it doesn’t prevent a private employer from setting its own rules.
• The First Amendment prevents government from requiring you to say something you don’t want to, or keeping you from hearing or reading the words of others (even if you never speak out yourself, you have the right to receive information).
• Students have the right to pray in America’s public schools, as long as there’s no disruption to school operations and no government employees (teachers, coaches) are involved.

Written by  Ken Paulson , director of the Free Speech Center

Looking for a general overview?  Here it is, from the First Amendment Encyclopedia.

What does the First Amendment say about freedom of speech? Can speech be restricted, and if so, when? In this overview, a First Amendment scholar explains what sorts of speech are protected, where free expression may be limited, and why “[f]reedom of speech is a core American belief, almost a kind of secular religious tenet, an article of constitutional faith.”

How did freedom of the press come about? Are there restrictions on press freedom? The ways in which this core freedom has developed in law are explained in this overview by a First Amendment scholar. In quotations from one court ruling, “‘[F]reedom of expression upon public questions is secured by the First Amendment’” so that “‘debate on public issues should be uninhibited, robust and wide-open.’”

The First Amendment introduced bold new ideas to the world: that government must not impose a state religion on the public, or place undue restrictions on religious practice, but must recognize the right of the people to believe and worship, or not, as their conscience dictates. This First Amendment scholar’s overview makes clear the many aspects of our religious freedom, saying, “That bold constitutional experiment in granting religious freedom to all remains in place, and in progress, in the United States.”

Our right to gather in peaceful public protest – in marches, rallies and other assemblies – is another core freedom guaranteed by the First Amendment. As a First Amendment scholar says in this overview, “First Amendment freedoms ring hollow if government officials can repress expression that they fear will create a disturbance or offend. Unless there is real danger of imminent harm, assembly rights must be respected.”

This least-known First Amendment freedom is nevertheless crucial to our democratic republic’s form of government. “Petition is the right to ask government at any level to right a wrong or correct a problem,” writes a First Amendment scholar in this overview detailing how the right of petition works in our government, and the forms it takes.

First Amendment Encyclopedia

A comprehensive research compilation covering all aspects of First Amendment law.

First Amendment Timeline

Significant historical events, court cases and ideas that have shaped our current system of constitutional First Amendment jurisprudence, compiled by the Newseum Institute’s First Amendment Center.

First Amendment in the Classroom

Here’s a single site collecting educational resources and lesson plans created by prominent First Amendment organizations throughout the nation.

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Free Speech

What is free speech? What are the limits to free speech? How does free speech play out on university campuses and on social media platforms? This brief discusses freedom of speech as provided in the First Amendment of the Constitution, why it is important in a democracy, court decisions that have limited and/or expanded these freedoms over time, and the challenges of supporting freedom of speech while also promoting safety and security of the nation and its citizens.

Table of Contents

Introduction, putting it in context, the role of government, challenges and areas for reform, thought leaders & additional resources, ways to get involved/what you can do.

• Suggestions for Your Next Conversation

View the Executive Summary for this brief.

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

– First Amendment of the U.S. Constitution

Why it Matters

Cultural shifts have changed the way many view free speech, the proper debate of ideas, and the consequences of freedom of speech in the public square and online. Philanthropy Roundtable highlights two open letters published by separate academic groups addressing these concerns. Newsweek ’s “Philadelphia Statement on Civil Discourse” notes, “Common decency and free speech are being dismantled through the stigmatizing practice of blacklisting ideological opponents” Similarly, Harper ’s “A Letter on Justice and Open Debate” states, “It is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.”

In part, the Founding Fathers intended the First Amendment to protect the rights of the American people and the press to express or publish opinions that are critical of the government. The First Amendment to the Constitution was passed by Congress on September 25, 1789, and ratified on December 15th, 1791.

According to ACLU’s The Bill of Rights: A Brief History : “The rights that the Constitution’s framers wanted to protect from government abuse were referred to in the Declaration of Independence as ‘unalienable rights.’ They were also called ‘natural’ rights, and to James Madison, they were ‘the great rights of mankind.’”

An individual’s right to free speech is the “most basic component of freedom of expression,” as described by Cornell University Law School . This portion of the First Amendment “allows individuals to express themselves without interference or constraint by the government. Regarding freedom of the press , “despite popular misunderstanding the right to freedom of the press guaranteed by the First Amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.”

The Founders saw the press as vital to the search and for attainment of truth, scientific progress, cultural development and as a check upon self-aggrandizing politicians. Still, the ACLU notes that “even the Constitution’s framers were guilty of overstepping the First Amendment,” particularly during times of national stress.

For example, the Alien and Sedition Act in 1798 (during the French and Indian War) limited what people could say against the government. In the 19th century, similar laws suppressed the speech of “abolitionists, religious minorities, suffragists, labor organizers, and pacifics.” During the early 20th century, “courts routinely granted injunctions prohibiting strikes” and “protestors opposing U.S. entry into World War I were jailed for expressing their opinions.” In 1923, Upton Sinclair was arrested for trying to read the First Amendment at a union rally.

A few court cases turned the tide of the crackdown on free speech. In 1919, the Supreme Court determined in Schenck  v. U.S. and in Abrams v. U.S. that “ speech could only be punished if it presented ‘a clear and present danger’ of imminent harm.” In Brandenburg v. Ohio (1969), the standard was tightened : “Speech can be suppressed only if it is intended, and likely to produce, ‘imminent lawless action.’”

Today, the role of government in free speech matters is limited primarily to protecting its citizens’ Constitutional rights, with interpretation of the First Amendment in specific cases left to the judiciary. According to the Constitution Center , “Although the First Amendment says ‘Congress,’ the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial.” Without first satisfying “a variety of standards and tests that have been established by the Supreme Court over the past century,” the government is very limited in its ability to restrict free speech.

This is based on the idea that laws restricting the content of speech usually violate First Amendment rights because such laws “distort public debate and contradict a basic principle of self-governance : that the government cannot be trusted to decide what ideas or information ‘the people’ should be allowed to hear.” This applies to speaking, writing, printing, and broadcasting, as well as publications on the Internet, displays and demonstrations, and even clothing.

The same does not apply, however, to private individuals or organizations, such as private landowners, private employers, or private colleges. The University of Chicago Law School’s Geoffrey Stone explains, “Like all guarantees of the Bill of Rights, the First Amendment’s fundamental guarantee of ‘freedom of speech, and of the press’ limits only the actions of the government (federal, state and local), not the actions of private individuals, organizations or businesses.”

What the government can do is impose “ time, place, and manner ” restrictions, such as requiring permits for meetings. The government is also allowed to intervene when a protest “crosses the line from speech to action.” For the most part, however, freedom of speech is seen as necessary to self-government because it “gives the American people a ‘ checking function ’ against government excess and corruption.”

PolicyEd breaks down who can restrict free speech (1 min):

The American Bar states that even two centuries after the Bill of Rights was ratified, “debate continues about the meaning of freedom of speech and its First Amendment companion, freedom of the press.”

Money and Politics

In recent decades, campaign contributions have been included as a form of free expression, but the question of whether and how the government can “constitutionally restrict political expenditures and contributions in order to ‘improve’ the democratic process” still remains. According to Geoffrey Stone of the University of Chicago Law School, after Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2014), “almost all government efforts to limit the impact of money in the political process have been held unconstitutional,” since these are considered as First Amendment rights of free expression. Still, some continue to argue that “the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits.”

For more on money and politics, see The Policy Circle’s Campaign Finance Reform brief .

“Low” Value Speech

“Low” value speech , which includes defamation, obscenity, and threats, is not protected by the First Amendment. New York Times v. Sullivan (1964) determined that defamation is not protected when it damages a person’s reputation and was done intentionally with malice. Obscenity and child pornography are also not protected, based on rulings in Miller v. California (1973) and New York v. Ferber (1982), respectively.

Hate speech, “speech that expressly denigrates individuals on the basis of such characteristics as race, religion, gender, national origin, and sexual orientation,” however, is not subject to regulation and as it “ does not constitute low value speech ” based on past Supreme Court rulings. This is also the case for entertainment, vulgarity, blasphemy, and even violent video games, although there is an exception for discrimination . According to Professor Eugene Volokh of UCLA School of Law, “when speech is ‘severe or pervasive’ enough to create a ‘hostile or offensive environment’…such speech becomes a form of discrimination.”

PolicyEd discusses the limits of free speech (1 min):

Classified Information

In 1971, the Supreme Court ruled in New York Times v. United States (the Pentagon Papers case) that the government “cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security.” There is an exception for government employees; in Snepp v. United States (1980), the Court ruled that employees who have access to classified information can be restricted from unauthorized disclosure of that information.

An open question is whether or not some government leakers are protected by the first amendment if they leak information “that discloses an unconstitutional, unlawful, or unwise classified program,” as is the case with Edward Snowden .

According to the ACLU , the Supreme Court has never actually sided with the government’s desire to keep some information secret, noting that “the government has historically overused the concept of ‘national security’ to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.”

Cancel Culture

Dictionary.com defines cancel culture as, “the popular practice of withdrawing support for ( canceling ) public figures and companies after they have done or said something considered objectionable or offensive.” From journalists and editors to university professors and researchers, many have faced backlash or have even been ousted from positions based on thoughts, opinions, and sometimes past mistakes.

Many young Americans say it is important to hold others accountable for their words and actions; They tend to lean more towards the idea of a “ call out ,” when “someone does something wrong, people tell them, and they avoid doing it again in the future.” But calling out can go too far, and many Americans express, “in no uncertain terms, serious concern for cancel culture’s impact on society. ”

Former president Obama weighs in on the cancel culture debate (2 min):

According to the “ Philadelphia Statement on Civil Discourse ,” social media mobs and cancel culture “foster conformism (‘group think’) and train us to respond to intellectual challenges with one or another form of censorship.” Harpers’ “A Letter on Justice and Open Debate ,” agrees that there is “an intolerance of opposing views” and “a vogue for public shaming and ostracism.

Cancel culture results in the restriction of discourse, debate, and the exchange of ideas, “on which the health and flourishing of a democratic republic crucially depend,” the  Philadelphia Statement says. Similarly, “A Letter on Justice and Open Debate likens “an intolerant society” to “a repressive government” in that both prevent democratic participation.

For a closer look at how cancel culture operates, read the NY Times’ Tales from the Teenage Cancel Culture .

The U.S. Supreme Court ruled in  Tinker v. Des Moines Independent Community School District (1969) that students “‘do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.'” In public schools, officials act as part of the government, and so must adhere to the Bill of Rights. However, courts have allowed school officials to prohibit certain types of student expression, namely speech that “substantially disrupts the school environment or invades the rights of others.” In recent years, given the age of social media, how schools should address potentially disruptive speech that originates off campus is another important question. For example, at least 25 states have laws that require schools to address off-campus cyberbullying. Even the Supreme Court has weighed in on student free speech rights.

Another component of the free speech debate on campuses surrounds college speech codes. In their 2015 essay, “ The Coddling of the American Mind ,” (which prefaced the book ), Greg Lukianoff and Jonathan Haidt say that “in the name of emotional well-being, college students are increasingly demanding protection from words and ideas they don’t like.” This is not exactly new ; in the 1980s and 1990s, calls for political correctness and anti-harassment codes on college campuses were followed by speech codes , “policies prohibiting speech that, outside the bounds of campus, would be protected by the First Amendment.” Some think that policing speech on campus is unconstitutional – restrictions on speech by public schools can amount to government censorship – while others argue such restrictions are necessary to deter hate speech. Although many college speech codes have since been dismantled or defeated in court – they do still exist. Speech codes can be “attractive to college administrators as a quick fix to address campus tensions.”

Similarly, whether schools should prohibit speeches by “speakers whose messages are offensive to student groups” is another area of debate. According to the ACLU, such restrictions “deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive.” First Amendment rights group FIRE ( Foundation for Individual Rights in Education ) maintains a “ Disinvitation Database ” of cases from 2000 to present where school administrators have rescinded invitations they have sent to speakers, usually due to pressure from students and/or faculty members.

See which other universities have adopted the Chicago Statement , and which colleges rank highest on RealCelarEducation’s 2021 College Free Speech Rankings .

Lee Rowland, attorney with the ACLU’s Speech, Privacy, and Technology Project discusses Campus Free Speech Realities and Myths (16 min):

Social Media & Big Tech

On social media, debates on free speech have “ been simmering for years .” When major online platforms were getting their start, most “preferred to moderate as little content as possible ,” but today “companies such as Facebook employ thousands of moderators and use artificial intelligence and other technology to keep tabs on what their users post.” This means that these platforms “have enormous power and influence over public discourse in our nation,” begging the question: “Should they have unlimited authority to decide for themselves who can and cannot share their views with other Americans on these extraordinarily powerful means of communication?” And, in the case of social media bans on former president Trump, what does it mean when a corporation can censor a government official ?

This is not the first time the theme has emerged with changing technologies. In the 1920s, many had similar fears that a few wealthy individuals would buy all the radio frequencies in an area and essentially take over the airwaves. With the Communications Act of 1934, Congress established the Federal Communications Commission (FCC) “to ensure that broadcast stations operate in the public interest .” In 1949, the FCC imposed the Fairness Doctrine , which required radio and tv broadcasters “to cover controversial issues of public importance in a fair and balanced manner.” Although the Fairness Doctrine was repealed by the Reagan administration in 1987, University of Chicago Law School’s Geoffrey Stone notes that today’s social media platform debates bring up again the question of whether or not these platforms should “be required to operate in a fair and balanced manner.”

Anti-monopoly Argument

Many concerned citizens “fear that these online platforms hold outsized power over public discourse because so much speech flows through them.” Gallup found that between August 2019 and February 2021, negative views of Big Tech companies among Americans increased from 33% to 45%, and the percentage of Americans who want government to regulate these technology firms increased from 48% to 57%. Policymakers have called to break up big tech for these reasons, as stated by Senators Elizabeth Warren and Ted Cruz :

Others are less inclined to use anti-monopoly tools to solve free speech problems, “arguing that such regulatory intervention opens the door for government overreach and abuse of power.” Neil Chilson and Casey Mattox from the Charles Koch Institute also argue that while antimonopoly efforts to promote competition can help free speech, in this case, “increasing the number of competitors will not help because current free speech concerns are not caused by a lack of competition.” In fact, they maintain that increasing the number of competing speech platforms could at best “force us into siloes of common opinion, diminishing viewpoint diversity on any one platform,” or at worst “further push the most hateful and vile to specialized platforms that would reinforce their tendencies rather than temper them.” Part of the problem is that there is a lack of consensus about what should be taken down on these platforms, not a lack of competition. For more on monopoly power and antitrust laws, see The Policy Circle’s Deep Dive on Antitrust Laws in Our Lives .

Instead of pursuing antimonopoly tools, there are other means of holding big tech companies accountable. One major issue is the “‘ ad model ’” – many large tech companies have made their fortunes by “selling advertisements to companies wishing to take advantage of the intricate profiles of potential consumers developed by the tech giants.” This targeted advertising, however, can contribute to “controversial and inflammatory content” as well as “polarization, and the spread of misinformation and disinformation.” In fact, as ad revenue is pulled away from traditional media companies and redirected online, it means that tech giants also have power “over media outlets’ ability to reach existing and new audiences,” which greatly alters “the economics and editorial approach of the news business .” One suggestion is building social media algorithms with goals other than maximizing ad revenue. How to go about this and change a well-ingrained system is unclear, but given that many people are becoming more aware of how their data is used to target advertising, new possibilities may develop. For more on what data is used for online, see The Policy Circle’s deep dive on Data Privacy and Cybersecurity .

Other options include strengthening user privacy protections, and even “self-regulation efforts or the development of internal ethical codes by the tech companies.” Such efforts would need to be enforced; for example, a number of major platforms endorsed the Santa Clara Principles on Transparency and Accountability in Content Moderation in 2019, but only Reddit adheres to the principles . In May 2020, Facebook created its own Oversight Board , an international group of academics, lawyers, and human rights advocates that “has been likened to a Supreme Court for content decisions” and is meant to help make the final call on difficult content decisions. Facebook created and funds the board, but no one at the company can overrule its decisions, Mark Zuckerberg included. A five-member panel of the 20-person oversight board reviewed and upheld the decision to suspend President Trump’s accounts in June 2021 . However, Facebook has indicated trouble keeping up with all recommendations coming from the oversight board.

Overall, a more substantial understanding of how these companies operate is necessary. Due to “ a lack of transparency on the part of the platforms about their human and machine-made decisions,” the general public does not completely understand how these decisions affect public discourse. Jillian C. York of the Electronic Frontier Foundation says that platforms “know what they need to do, because civil society has told them for years. They must be more transparent and ensure that users have the right to remedy when wrong decisions are made.”

For more on “the dark side of social media,” see the Netflix documentary, The Social Dilemma .

Section 230

Section 230 is a component of the Communications Decency Act that protects internet service providers and online platforms “from liability for the decisions they make about the content they host,” meaning they cannot be held liable (in most cases) for what third parties post. Joe Toscano, former Google consultant , explains that Section 230 was originally meant to enable innovation. Today, given the size and influence of social media platforms, many believe the protections offered by Section 230 are no longer necessary and have called to repeal or amend it. According to Toscano, social media platforms’ increased content moderation efforts “‘proves that they now realize they are responsible for the content and now it’s time to talk about Section 230.’”

Others are more hesitant to make changes to Section 230. Jillian C. York predicts that repealing Section 230 “would hinder competitors to Facebook and the other tech giants, and place a greater risk of liability on platforms for what they choose to host.” While larger platforms could probably afford to comply with any regulations, smaller competitors with fewer resources likely could not. New rules would not only affect big tech companies, but also small startups such as photosharing services, websites with comment sections, or review websites. If the intention is to limit the monopoly-like influence of social media platforms, this would essentially have the opposite effect. Senator Ron Wyden (D-OR), original co-author of Section 230, notes that the First Amendment, not 230, protects free speech , and says, “‘Pretending that repealing one law will solve our country’s problems is a fantasy.”

The Wall Street Journal dives deeper into the rules of what can be said on social media (8 min):

Misinformation

A related dilemma is that of misinformation spreading on social media. Unless fraudulent news crosses “specific legal red lines,” such stories “are not illegal, and our government does not have the power to prohibit or censor them,” explains Suzanne Nossel , former deputy assistant secretary of state for international organizations at the State Department. Government can play a role as can news outlets, social media platforms, and fact-checking groups, but each actor must also respect the extent to which they can pursue interventions. Going too far with restrictions can be just as damaging to free speech as fake news stories, and will likely do little to help “the related erosion of public trust,” Nossel warns.

In fact, globally, trust in information sources from traditional media to social media is at record lows, according to the January 2022 Edelman Report . The Edelman Report also found that, because of this erosion of trust, respondents said that increasing their media and information literacy is one of the most important things they can do for themselves. Nossel advocates this as well, saying that the “best prescription against the epidemic of fake news is to inoculate consumers by building up their ability to defend themselves.”

How has Americans’ trust in social media changed over time? See The Policy Circle’s Rebuilding Trust in America Brief to find out.

To learn more about big tech’s role in free speech realm, watch  The Policy Circle’s Move The Needle Virtual Experience Free Speech Series: Big Tech Tightrope: Balancing Free Speech, Privacy & Innovation .

On an individual and community level, the right “ to express one’s thoughts and communicate freely with others affirms the dignity and worth of each and every member of society.” On a societal level, freedom of expression is “necessary to our system of self-government and gives the American people a ‘checking function’ against government excess and corruption.” As 21st century debates over First Amendment rights continue in our society from college campuses to social media platforms, we must remember these rights are “vital to the attainment and advancement of knowledge, and the search for the truth.”

Louisiana State University’s Fight Fake News

Philanthropy Roundtable: Free Speech Update  

Philanthropy Roundtable: Resisting Hate with Free Speech, Not Censorship with Nadine Strossen

Noam Chomsky discusses Free Speech on campus at the University of Arizona in 2018. 

Foundation for Individual Rights in Education

OpenMinds is an online program based in evidence-based psychology that takes users on a five-step journey to prepare them emotionally, psychologically, and practically for constructive engagement across differences.  It is available for use in academic, corporate, non-profit/religious settings as well as for individual use.

Bridge the Divide seeks to promote political conversation amongst youth in a time of great division in both American and global political affairs.  The international group was started and is run by young people – some of whom are still in college – to engage politically active students in stimulating, productive and respectful conversation to bring about positive change in the world.

Heterodox Academy aims to “create college classrooms and campuses that welcome diverse people with diverse viewpoints and equip learners with the habits of heart and mind to engage that diversity in open inquiry and constructive disagreement.

Measure : Find out what your community is doing about free speech.

• Do you know the state of free speech in your community or state?
• What are your alma mater’s policies?

Identify: Who are the influencers in your state, county, or community? Learn about their priorities and consider how to contact them, including elected officials , attorneys general, law enforcement, boards of education, city councils, journalists, media outlets, community organizations, and local businesses.

• Who are the board members determining policy at your alma mater or local educational institutions?
• What steps have your state’s or community’s elected and appointed officials taken?

Reach out: You are a catalyst. Finding a common cause is a great opportunity to develop relationships with people who may be outside of your immediate network. All it takes is a small team of two or three people to set a path for real improvement. The Policy Circle is your platform to convene with experts you want to hear from.

• Find allies in your community or in nearby towns and elsewhere in the state.
• Foster collaborative relationships with local businesses, community organizations, and school boards.

Plan: Set some milestones based on your state’s legislative calendar .

• Don’t hesitate to contact The Policy Circle team, [email protected] , for connections to the broader network, advice, insights on how to build rapport with policy makers and establish yourself as a civic leader.

Execute: Give it your best shot. You can:

• Re-read the Bill of Rights and the Constitution .
• Examine OpenMind and whether or not it could be a good fit for use in your church, school, workplace, or at home.
• Engage with college students you know.
• Consider sending a letter to the administration if, for example, you are uncomfortable making financial contributions given certain policies.
• With a group of friends, your kids, or with your Policy Circle, try this “Debate it!” activity from the National Constitution Center, which asks you to consider a variety of scenarios in which free speech might be limited.

Working with others, you may create something great for your community. Here are some tools to learn how to contact your representatives and write an op-ed .

Suggestions for your Next Conversation

Explore the series.

This brief is part of a series of recommended conversations designed for circle's wishing to pursue a specific focus for the year. Each series recommends "5" briefs to provide a year of conversations.

The 2023 Series

The active citizenship series.

Managing American Spaces

First amendment rights: freedom of speech and the press.

FIRST AMENDMENT RIGHTS:

Freedom of speech and the press, resource toolkit for american spaces.

This Resource Toolkit is designed for programming at American Spaces to create a greater awareness of the rights outlined in the First Amendment of the Bill of Rights, specifically freedom of speech and of the press.

SPEECH AND PRESS IN AMERICA: UNLIMITED?

Free speech and press have a long  history in America. These protections give an independent press and individuals the right to express themselves without government interference, this includes the right to hold unpopular opinions.

LESSON PLANS

• The Dilemma of Free Speech * – This PBS lesson Plan has videos and handouts

From Newseum * with videos, handouts, and lesson plans (requires free account)

• Introduction to the First Amendment
• Free Speech Essentials
• You Can’t Say that?!

What is Freedom of Speech ?

The First Amendment to the U.S. Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …

Freedom of speech, also interpreted to include expression beyond speech, is the right for people to express, promote, and defend their ideas through written, artistic, oral, and sign-based communication. Since America’s founding, freedom of speech allows individuals to speak out against injustices, criticize government policy, and share their opinions. A free press provides formal channels for amplifying different opinions, criticisms, and perspectives. Both freedoms are invaluable cornerstones of a free society. See this short video for a quick summary.

MORE RESOURCES

Lesson plans on press freedom*.

• Free Press Challenges through History
• World Press Freedom Map
• The Berlin Wall and the Press

SHAREAMERICA ARTICLES

• Why offensive speech is protected
• 3 court cases that show what free speech means
• Censor the Internet? Bad Idea.
• Want a democracy? Keep the press free and active.
• How can a free press make a better future?

VIDEOS/PODCAST*

• Limits of Free Speech
• Freedom of Speech Explained
• Unprecedented Podcast on First Amendment court case
• NewseumEd has some excellent interactive online materials, including videos and self-paced courses on freedom of speech and press. You’ll need to create a free account to access their materials.

The Importance of Free Press

Knowledge is power. In print, online, or on TV or radio:  without a free exchange of information, people can’t be fully aware of what’s going on around them and so can’t meaningfully participate in their communities or democracies. When freedom of expression is respected and recognized the media are able to freely report on politics, economics, and societal events as they occur. The free press is the foundation of any true democracy. A strong democracy encourages a free press — one that keeps the public informed, enables a diversity of voices, and holds leaders accountable.

Program Ideas

• Invite independent journalists and activists to discuss their work and issues related to press freedom and freedom of expression in your country.
• The United States Agency for Global Media (USAGM) , which includes Voice of America, provides unbiased reporting in countries and languages across the world. This page explains how your American Space can use USAGM resources, including how to get a USAGM expert to present virtually.
• Start journalism clubs – This could include photojournalism, multimedia, and podcasting. Consider having a U.S. exchange alumni journalist lead or present at these clubs.

The views expressed in these links and resources do not necessarily reflect those of the U.S. government.

Updated March 2023

By scottbj | 24 April, 2023 | Topics: Adult , Age Group , Audience , Civil Society , College and University , Countering Mis and Disinformation , Democracy & Governance , Emerging Voices , Established Opinion Leaders , High School , Information about the United States , Pillars of American Spaces , Press & Media , Programming Type , Rule of Law , Social , Strategy , Toolkits , U.S. Culture , U.S. Policy and Values | Tags: month , programming , toolkit

Bridging the Gap of Cultural Unfamiliarity

Celebrating black history month.

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1 (page 1) p. 1 Free speech

• Published: February 2009
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What is the value of free speech? What limits should we set to it? Everyone has an interest in being permitted to express themselves and having the opportunity to hear, read, and see the free expression of others. Free speech is regarded as essential in a democratic society. ‘Free speech’ gives an overview of the history of the freedom to express opinions in modern democratic society and outlines some of the complexities involved in permitting free speech. How do we find the balance between free speech and national security? The difficulty is in framing the exceptions to the presumption of free speech in a way that allows for consistent application of the principle without less desirable censorship.

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2 Minute Speech On The Importance Of Freedom In English

Good morning everyone present here, today I am going to give a speech on the importance of freedom. The ability for each person to make choices about their own lives, subject to some constraints, is referred to as freedom. While we have a lot of options at our disposal, we must also be careful not to infringe on others’ freedoms. The right of people to express their views and beliefs lies at the heart of disputes between civilizations.

Freedom is the state of being able to speak, act, and pursue happiness without unneeded external restraints. Freedom is important because it promotes original thought and creative expression, higher productivity, and a high standard of living in general.

Each generation needs to rethink and reaffirm the difficult concept of freedom. Furthermore, only people who have a strong sense of history and a profound comprehension of human nature can truly comprehend and value freedom. People who enjoy freedom all too frequently fail to recognize its fragility and take it for granted. On the other hand, those who have not grown up in a culture that has a long history of valuing freedom find it difficult to comprehend and apply it to their community. 

Absolute freedom does not exist, particularly inside centralized political structures like towns and nations. The rights of the individual and the objectives and duties of the state must always be compromised for freedom to exist. As a result, there are numerous laws, rules, and legal rulings about the principles of freedom and the specifics of how they are to be used. Thank you. 

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• Nelson Mandela: Long Walk to Freedom Summary Class 10 English

Summary of Nelson Mandela: Long Walk to Freedom

Long Walk to Freedom is the autobiography of Nelson Mandela, who was the former South African President. This article is for Nelson Mandela long walk to freedom summary. This chapter is the extracts from the “Long Walk to Freedom” book. It includes the description of the inauguration ceremony and citations from his speech and about his journey to being a freedom fighter. It says about the other countless people who fought for their freedom.   In South Africa, a brutal practice named “apartheid” was very popular in those days. It referred to the discrimination between people on the basis of their race and colour. It was one of the most brutal societies in which dark-skinned people were deprived of their basic rights. This lesson gives us an overview of the struggles of Mandela for making the society with no discrimination on the basis of their colour, caste, race, age or gender.

Nelson Mandela: Long Walk to Freedom Summary in English

“A Long to Freedom”, by Nelson Mandela is all about the struggle of freedom of South-Africa. On May 10, 1994, Nelson Mandela has taken the vow as the first black president of South Africa. And therefore it was becoming a new-born democratic country. Nelson Mandela took the oath as the first black president.

Many dignitaries from different countries had come to be part of the most significant day. In his speech, Mandela thanked all those dignitaries. Mandela assured his countrymen that his country would never ever experience the same suppression of one by another. Democracy had been established in South Africa and as a result, a government of no discrimination was established.

Read more English Chapter Summaries here

The people of South Africa sang two National Anthems as a symbol of that day. Mandela recalled that the reason for this movement was that Black-skinned people were exploited by the White people. He said that this type of suppression of people of South Africa is the origin of many stars. People must learn to hate first, because if they hate then they can be taught to love, as love comes from the opposite circumstances. He also says that a brave man is not that who does not feel afraid but who conquers it.

In life, a man has two major obligations. First towards his family, to his parents, to his wife and to his children and second on the other hand obligation towards his country, people and the community. Everyone fulfils his duty as per his inclination and interest. But it was very tough to fulfil in a country like South Africa. When Mandela became an adult then he understood that his freedom was only an illusion. In fact, he was the slave of exploitation. He also understood that not only he was a slave but his other family members were also.

According to him, Freedom is also mandatory for them who were suppressing others in the past. They also have the right to have it because snatcher of other’s freedom is a prisoner of the same. Thus, the oppressor is as much a prisoner as the oppressed. The oppressor too is not free.

Conclusion of Nelson Mandela: Long Walk to Freedom

The brave man is not the one who does not feel afraid, but he is the one who conquers that fear. Mandela said that every man has his duties towards his country and community too.

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