disadvantages of freedom of speech essay

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The good, the bad, and the ugly of free speech

Pamela J. Forsythe

Daryl Tempesta is shown with tape over his mouth in protest in April, in Berkeley, Calif. Demonstrators gathered near the University of California, Berkeley campus amid a strong police presence and rallied to show support for free speech and condemn the views of Ann Coulter and her supporters. (AP Photo/Marcio Jose Sanchez, file)

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17 Freedom of Speech Pros and Cons

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

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

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

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

List of the Pros of Freedom of Speech

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

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

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

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

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

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

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

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

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

List of the Cons of Freedom of Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justifying Limitations on the Freedom of Expression

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

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disadvantages of freedom of speech essay

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

The Bill of Rights and Freedom of Belief and Expression: They Provide for Liberty, Not License

Toleration and the Law

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Introduction

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

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

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

The Value of the Freedom of Expression

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

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

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

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

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

The Proportionality Test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Duty-Based Justificatory Approach

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

Duties of Justice

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

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

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

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

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

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

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

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

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

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

Is the Language of Duties Dangerous?

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

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

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

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

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

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

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

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

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

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Acknowledgements

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

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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

Before answering this question, read the full text of the amendment. What does it say about speech?

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.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “ High Schools Threaten to Punish Students Who Kneel During Anthem ,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem. On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “ Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech ,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views. And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome. It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “ Supreme Court Strikes Down Law Barring Political Apparel at Polling Places ,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places. In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why? • Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why? • Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools? • Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)? • Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

Freedom of Speech

This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first, and best, defenses of free speech based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle.

1. Introduction: Boundaries of the Debate

2.1 john stuart mill's harm principle, 2.2 mill's harm principle and pornography, 2.3 mill's harm principle and hate speech, 3.1 joel feinberg's offense principle, 3.2 pornography and the offense principle, 3.3 hate speech and the offense principle, 4.1 democratic citizenship and pornography, 4.2 democratic citizenship and hate speech, 4.3 paternalistic justification for limiting speech, 5. back to the harm principle, 6. conclusion, bibliography, other internet resources, related entries.

The topic of free speech is one of the most contentious issues in liberal societies. If the liberty to express oneself is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech. Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, “free speech in short, is not an independent value but a political prize” (1994,102). No society has yet existed where speech has not been limited to some extent. As John Stuart Mill argued in On Liberty , a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former:

All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed—by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to the value we place on other important ideals: “speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good” (Fish, 1994, 104). In this essay, we will examine some conceptions of the good that are deemed to be acceptable limitations on speech. We will start with the harm principle and then move on to other more encompassing arguments for limiting speech.

Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the “slippery slope.” Those who support the slippery slope argument warn that the consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should never allow any removal of government intervention because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as “solitary, poore, nasty, brutish, and short” (1968, 186).

Another thing to note before we engage with the harm principle is that we are in fact free to speak as we like. Hence, freedom of speech differs from some other forms of freedom of action. If the government wants to prevent citizens engaging in certain actions, riding motor bikes for example, it can limit their freedom to do so by making sure that such vehicles are no longer available. For example, current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published their thoughts. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree at the very moment she performed an action. The government would have to remove our vocal chords for us to be unfree in the same way as the motorcyclist is unfree.

A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it more difficult and potentially more costly to exercise our freedom. Such sanctions take two major forms. The first, and most serious, is legal punishment by the state, which usually consists of a financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction comes from social disapprobation. People will often refrain from making public statements because they fear the ridicule and moral outrage of others. For example, one could expect a fair amount of these things if one made racist comments during a public lecture at a university. Usually it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill provides a strong warning about the chilling effect of the latter form of social control.

We seem to have reached a paradoxical position. I started by claiming that there can be no such thing as a pure form of free speech: now I seem to be arguing that we are, in fact, free to say anything we like. The paradox is resolved by thinking of free speech in the following terms. I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits, and the next sections of the essay look at some possible solutions to this puzzle.

2. The Harm Principle and Free Speech

Given that Mill presented one of the first, and still perhaps the most famous liberal defense of free speech, I will focus on his claims in this essay and use them as a springboard for a more general discussion of free expression. In the footnote at the beginning of Chapter II of On Liberty , Mill makes a very bold statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. (1978, 15)

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (1978, 16)

Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological” (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons.

This is as strong an argument for freedom of speech as we are likely to find. But as I already noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (1978, 9)

There is a great deal of debate about what Mill had in mind when he referred to harm; for the purposes of this essay he will be taken to mean that an action has to directly and in the first instance invade the rights of a person (Mill himself uses the term rights, despite basing the arguments in the book on the principle of utility). The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. This is the position staked out by Mill in the first two chapters of On Liberty and it is a good starting point for a discussion of free speech because it is hard to imagine a more liberal position. Liberals find it very difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others.

If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers; he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,” (1978, 53), namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing legitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

There are other instances when the harm principle has been invoked but where it is more difficult to demonstrate that rights have been violated. Perhaps the most obvious example of this is the debate over pornography. As Feinberg notes in Offense to Others: the Moral Limits of the Criminal Law most attacks on pornography up to the 1970's were from social conservatives who found such material to be immoral and obscene; (Feinberg notes that there is no necessary link between pornography and obscenity; pornography is material that is intended to cause sexual arousal, whereas something is obscene when it causes repugnance, revulsion and shock. Pornography can be, but is not necessarily, obscene). In recent times the cause against pornography has been joined by some feminists who have maintained that pornography degrades, endangers, and harms the lives of women. This argument, to have force, must distinguish between pornography as a general class of material (aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abuse women. If it can be demonstrated that this latter material significantly increases the risk that men will commit acts of physical violence against women, the harm principle can legitimately be invoked.

When pornography involves young children, most people will accept that it should be prohibited because of the harm that is being done to persons under the age of consent. It has proved much more difficult to make the same claim for consenting adults. It is hard to show that the actual people who appear in the books, magazines, films, videos and on the internet are being physically harmed, and it is even more difficult to demonstrate that harm results for women as a whole. Very few people would deny that violence against women is abhorrent and an all too common feature of our society, but how much of this is caused by violent pornography? One would have to show that a person who would not otherwise rape or batter females was caused to do so through exposure to material depicting violence to women.

Andrea Dworkin (1981) has attempted to show that harm is caused to women by pornography, but it has proven very difficult to draw a conclusive causal relationship. If pornographers were exhorting their readers to commit violence and rape, the case for prohibition would be much stronger, but they tend not to do this, just as films that depict murder do not actively incite the audience to mimic what they see on the screen. Remember that Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not sufficient grounds for prohibition. Overall, it seems very difficult to mount a compelling case for banning pornography (except in the case of minors) based on the concept of harm as formulated by Mill.

Another difficult case is hate speech. Most European liberal democracies have limitations on hate speech, but it is debatable whether these can be justified by the harm principle as formulated by Mill. One would have to show that such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property.

The main argument against allowing the march, based on the harm principle, was that it would cause harm by inciting opponents of the march to riot. The problem with this claim is that it is the harm that could potentially be done to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate. To ban speech for this reason, i.e., for the good of the speaker, tends to undermine the basic right to free speech in the first place. If we turn to the local community who were on the wrong end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that Mill's argument does not allow for state intervention in this case. If we base our defense of speech on the harm principle we are going to have very few sanctions imposed on the spoken and written word. It is only when we can show direct harm to rights, which will almost always mean when an attack is made against a specific individual or a small group of persons, that it is legitimate to impose a sanction. One response is to suggest that the harm principle can be defined in a less stringent manner than Mill's formulation. This is a complicated issue that I cannot delve into here. Suffice it to say that if we can, then more options might become available for prohibiting hate speech and violent pornography.

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because, as already noted, most people think that free speech should be limited if it does cause illegitimate harm. George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech, he claims, cause nowhere near as much harm as political and religious speech. His conclusion is that we do not want to ban these forms of speech and the harm principle, therefore, casts its net too far. Kateb's solution is to abandon the principle in favor of almost unlimited speech.

This is a powerful argument, but there seem to be at least two problems with the analysis. The first is that the harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. I doubt that Mill would support using his arguments about harm to ban political and religious speech. The second problem for Kateb is that if we accept he is right that such speech does cause harm in the sense of violating rights, the correct response is surely to start limiting political and religious speech. If Kateb's argument is sound he has shown that harm is more extensive than we might have thought; he has not demonstrated that the harm principle is invalid.

3. The Offense Principle and Free Speech

The other response to the harm principle is that it does not reach far enough. One of the most impressive arguments for this position comes from Joel Feinberg, who suggests that the harm principle cannot shoulder all of the work necessary for a principle of free speech. In some instances, Feinberg suggests, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm. As Feinberg notes, however, this has not always been the case and he cites a number of instances in the U.S. where penalties for sodomy and consensual incest have ranged from twenty years imprisonment to the death penalty. These are victimless crimes and hence the punishment has to have a basis in the supposed offensiveness of the behavior rather than the harm that is caused.

Such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech, that would escape prosecution under the harm principle. Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples. Given the specific nature of this essay, I will not delve into the issue of offensive behavior in all its manifestations, and I will limit the discussion to offensive forms of speech. Feinberg suggests that a variety of factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

How does the offense principle help us deal with the issue of pornography? Given the above criteria, Feinberg argues that books should never be banned because the offensive material is easy to avoid. If one has freely decided to read the book for pleasure, the offense principle obviously does not apply, and if one does not want to read it, it is easily avoidable. And if one is unaware of the content and should become offended in the course of reading the text, the solution is simple-one simply closes the book. A similar argument would be applied to pornographic films. The French film Bais-Moi was in essence banned in Australia in 2002 because of its offensive material (it was denied a rating which meant that it could not be shown in cinemas). It would seem, however, that the offense principle outlined by Feinberg would not permit such prohibition because it is very easy to avoid being offended by the film. It should also be legal to advertise the film, but some limits could be placed on the content of the advertisement so that sexually explicit material is not placed on billboards in public places (because these are not easily avoidable). At first glance it might seem strange to have a more stringent speech code for advertisements than for the thing being advertised; the harm principle would not provide the grounds for such a distinction, but it is a logical conclusion of the offense principle.

What of pornography that is extremely offensive because of its violent or degrading content? In this case the offense is more profound: simply knowing that such films exist is enough to deeply offend many people. The difficulty here is that bare knowledge, i.e., being offended by merely knowing that something exists or is taking place, is not as serious as being offended by something that one does not like and that one cannot escape. If we allow that films should be banned because some people are offended, even when they do not have to view them, logical consistency demands that we allow the possibility of prohibiting many forms of expression. Many people find strong attacks on religion, or t.v. shows by religious fundamentalists deeply offensive. Hence, Feinberg argues that even though some forms of pornography are profoundly offensive to a lot of people, they should still be permitted.

Hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition. If we examine some of the other factors regarding offensive speech mentioned above, Feinberg suggests that the march through Skokie does not do very well: the social value of the speech seems to be marginal, the number of people offended will be large, and it is difficult to see how it is in the interests of the community. These reasons also hold for violent pornography.

A key difference, however, is in the intensity of the offense; it is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult the members of the community with Nazi symbols. Nor, according to Feinberg, was there any political content to the speech. The distinction between violent pornography and this specific example of hate speech is that a particular group of people were targeted and the message of hate was paraded in such a way that it could not be easily avoided.It is for these reasons that Feinberg suggests hate speech can be limited.

He also claims that when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. If pornographers engaged in the same behavior, parading through neighborhoods where they were likely to meet great resistance and cause profound offense, they too should be prevented from doing so. It is clear, therefore, that the crucial component of the offense principle is the avoidability of the offensive material. For the argument to be consistent, it must follow that many forms of hate speech should still be allowed if the offense is easily avoidable. Nazis can still meet in private places, or even in public ones that are easily bypassed. Advertisements for such meetings can be edited (because they are less easy to avoid) but should not be banned.

4. Democracy and Free Speech

Very few liberals take the Millian view that only speech causing direct harm should be prohibited; most support some form of the offense principle. Some are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior to others on the grounds of race or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as sexual objects, who are often violently mistreated. Rae Langton, for example, starts from the liberal premise of equal concern and respect and concludes that it is justifiable to remove certain speech protections for pornographers. She avoids basing her argument on harm: “If, for example, there were conclusive evidence linking pornography to violence, one could simply justify a prohibitive strategy on the basis of the harm principle. However, the prohibitive arguments advanced in this article do not require empirical premises as strong as this…they rely instead on the notion of equality” (1990, 313).

Working within the framework of arguments supplied by Ronald Dworkin, who is opposed to prohibitive measures, she tries to demonstrate that egalitarian liberals such as Dworkin, should, in fact, support the prohibition of pornography. She suggests that we have “reason to be concerned about pornography, not because it is morally suspect, but because we care about equality and the rights of women” (1990, 311). This is an approach also taken by Catherine McKinnon (1987). She distinguishes, much like Feinberg, between pornography and erotica. Erotica might be explicit and create sexual arousal, neither of which is grounds for complaint. Pornography would not come under attack if it did the same thing as erotica; the complaint is that it portrays women in a manner that undermines their equal status as citizens: “We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual” (1987, 176).

Langton agrees and concludes that “women as a group have rights against the consumers of pornography, and thereby have rights that are trumps against the policy of permitting pornography…the permissive policy is in conflict with the principle of equal concern and respect, and that women accordingly have rights against it” (1990, 346). Because she is not basing her argument on the harm principle, she does not have to show that women are harmed by pornography. For the argument to be persuasive, however, one has to accept that permitting pornography does mean that women are not treated with equal concern and respect.

To argue the case above, one has to dilute one's support for freedom of expression in favor of other principles, such as equal respect for all citizens. This is a sensible approach according to Stanley Fish. He suggests that the task we face is not to arrive at hard and fast principles that govern all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will tend to remind us that when we are discussing free speech, we are not dealing with speech in isolation; what we are doing is comparing free speech with some other good. For instance, we have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm.

I suggested early in this essay that to begin from a principle of unregulated speech is to start from a place that itself needs to be vigorously defended rather than simply assumed. Stanley Fish is of a similar temperament and suggests that we need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action” (1994, 111). Is speech promoting or undermining our basic values? “If you don't ask this question, or some version of it, but just say that speech is speech and that's it, you are mystifying—presenting as an arbitrary and untheorized fiat—a policy that will seem whimsical or worse to those whose interests it harms or dismisses” (1994, 123).

In other words, there have to be reasons behind the argument to allow speech; we cannot simply say that the First Amendment says it is so, therefore it must be so. The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech. A good policy “will not assume that the only relevant sphere of action is the head and larynx of the individual speaker” (Fish, 1994, 126). Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, “it depends. I am not saying that First Amendment principles are inherently bad (they are inherently nothing), only that they are not always the appropriate reference point for situations involving the production of speech” (1994, 113). But, all things considered, “I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope towards tyranny. This is a judgement for which I can offer reasons but no guarantees” (1994, 115).

Hence, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say, guided but not hidebound by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: “No such thing as free (nonideologically constrained) speech; no such thing as a public forum purged of ideological pressures of exclusion” (Fish, 1994, 116). Speech always takes place in an environment of convictions, assumptions, and perceptions i.e., within the confines of a structured world. The thing to do, according to Fish, is get out there and argue for one's position.

We should ask three questions according to Fish: “[g]iven that it is speech, what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?” (1994, 127). He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas. Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the center of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is such a great football team but it would be completely inappropriate (and open to censure) to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. A campus is not simply a “free speech forum but a workplace where people have contractual obligations, assigned duties, pedagogical and administrative responsibilities” (1994,129). Almost all places in which we interact are governed by underlying values and hence speech will have to fit in with these principles: “[r]egulation of free speech is a defining feature of everyday life” (Fish, 1994,129). Thinking of speech in this way removes a lot of the mystique. Whether we should ban hate speech is just another problem along the lines of whether we should allow university professors to talk about football in lectures.

Although Stanley Fish takes some of the mystique away from the value of speech, he still thinks of limitations largely in terms of other regarding consequences. There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of the action involved (whether it be speech or some other form of behavior) and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category. Most liberals are wary of such arguments because we are now entering the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Mill, for example, is an opponent of paternalism generally, but he does believe there are certain instances when intervention is warranted. He suggests that if a public official is certain that a bridge will collapse, he can prevent a person crossing. If, however, there is only a danger that it will collapse the person can be warned but not coerced. The decision here seems to depend on the likelihood of personal injury; the more certain injury becomes, the more legitimate the intervention. Prohibiting freedom of speech on these grounds is very questionable in all but extreme cases (it was not persuasive in the Skokie case) because it is very rare that speech would produce such a clear danger to the individual.

Hence we have exhausted the options that are open to the liberal regarding limitations on free speech and one cannot be classed as a liberal if one is willing to stray further into the arena of state intervention than already discussed. Liberals tend to be united in opposing paternalistic and moralistic justifications for limiting free expression. They have a strong presumption in favor of individual liberty because, it is argued, this is the only way that the autonomy of the individual can be respected. To prohibit speech for reasons other than those already mentioned means that one has to argue that it is permissible to limit speech because of its unsavory content, or as Feinberg puts it, one has to be willing to say that

[i]t can be morally legitimate for the state, by means of the criminal law, to prohibit certain types of action that cause neither harm nor offense to any one, on the grounds that such actions constitute or cause evils of other kinds. ( Harmless Wrongdoing , p. 3)

Acts can be “evil” if they are dangerous to a traditional way of life, because they are immoral, or because they hinder the perfectibility of the human race. Many arguments against pornography take the form that such material is wrong because of the moral harm it does to the consumer. Liberals oppose such views because they are not overly interested in trying to mold the moral character of citizens.

We began this examination of free speech with the harm principle; let us end with it and assess whether it helps us determine the proper limits of free expression. The principle suggests that we need to distinguish between legal sanction and social disapprobation as means of limiting speech. As already noted, the latter does not ban speech but it makes it more uncomfortable to utter unpopular statements. J.S. Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, Mill also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because it produces stunted, pinched, hidebound and withered individuals: “everyone lives as under the eye of a hostile and dreaded censorship…[i]t does not occur to them to have any inclination except what is customary” (1978, 58). He continues:

the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind…at present individuals are lost in the crowd…the only power deserving the name is that of masses…[i]t does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought. (1978, 63-4)

With these comments, and many of a similar ilk, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority.

It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation:

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. (1978, 97 [author's emphasis]

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful persons can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the persons, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill[special-character:#146s arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Hence we see that one of the great defenders of the harm principle seems to shy away from it at certain crucial points and it is unlikely that a defense of free speech can rest on the principle alone. It does, however, remain an elementary part of the liberal defense of individual freedom.

Liberals tend to defend freedom generally, and free speech in particular, for a variety of reasons beyond the harm principle; speech fosters authenticity, genius, creativity, individuality and human flourishing. Mill tells us specifically that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence. Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography? It is worth pondering the relationship between speech and truth. If we had a graph where one axis was truth and the other was free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured? It is certainly questionable whether arguments degenerate into prejudice if they are not constantly challenged. Devil's advocates are often tedious rather than useful interlocutors. None of this is meant to suggest that free speech is not vitally important; this is, in fact, precisely the reason we need to find good arguments in its favor. But sometimes supporters of free speech, like its detractors, have a tendency to make assertions without providing compelling evidence to back them up.

In a liberal society, we have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. The offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that all forms of pornography and most forms of hate speech will escape punishment. If this argument is acceptable, it seems only logical that we should extend it to other forms of behavior. Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither the harm or the offense principles as outlined by Mill support criminalizing bigamy or drug use, nor the enforcement of seat belts, crash helmets and the like.

Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state should decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes offense. As we have seen, even Mill seems to back away somewhat from the harm principle. Hence the freedom of expression supported by the harm principle as outlined in Chapter One of On Liberty and by Feinberg's offense principle is still a possibility rather than a reality. It is also up to the reader to decide if it is an appealing possibility.

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[As of January 2008, typing “free speech” on Google will net millions of entries. Hence it is best to simply jump in and see what one can find. It is worth noting that almost all of them are devoted to the promotion of speech in the face of censorship. This reflects a strong bias on the internet in favor of the “slippery slope” view of free speech. There are not many entries where an argument is made for placing limitations on free expression. Wikipedia has a quite a few entries dealing with censorship, free speech, pornography, and crime statistics. Here are a few other cites to get you going.]

American Civil Liberties Union
Free Speech Movement archives (related to Berkeley in the 1960's)
Freedom Forum , (a forum dedicated to free speech and a free press)
Free Expression , Center for Democracy and Technology, (a website related to the issue of free speech and the internet)
Electronic Frontiers Australia (an Australian website on censorship and free speech)
The Kellor Center for the Study of the First Amendment

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Freedom of speech

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The pros and cons

There are good reasons to preserve freedom of speech – the case is made with formidable power in John Stuart Mill’s classic text, On Liberty (1859). In a society in which speech is free, there will be an interchange of ideas, truths that damage those in power will be more difficult to suppress, and common views will not ossify into dead dogmas. However, freedom of speech also has its dangers: speech could damage a state (that is, betray state secrets); speech could incite violence against people, and speech could offend other people.

We can look at these, as indeed Mill looked at these, against the background of his ‘one simple principle’: ‘That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’ However, when it comes to the actual details, things are not so clear.

Take betraying state secrets. When Edward Snowden leaked all kinds of state secrets to the press, was he inflicting damage on the legitimate activities of the state, or was he bringing to light activities that really should not have been being performed by the state? What is the line between protecting information, the release of which would be damaging to the state, and protecting information, the release of which would be embarrassing to the state? Where that line should be drawn is one matter, but all sides agree that it should be drawn somewhere.

The dangers of free speech

The second issue, speech that incites violence, is also tricky. Mill himself thought that people should not be allowed to put the blame for hunger on corn dealers to an angry mob outside a corn dealer’s house (in his example), even though they should be allowed to express those views in a newspaper. There are all too many instances of speech causing, or being part of the cause of terrible events.

The genocide in Rwanda was helped along by radio broadcasts in which Tutsis were called ‘cockroaches’, who needed to be ‘exterminated’. Should, however, all speech that might incite violence be banned? What if there really is a group of people in a society who really are doing terrible things? Drawing attention to those things might well increase the probability of violence being committed against that group, but would it be wrong to do so? This, of course, underpins the complaint that ‘political correctness’ has prevented those in authority from calling out bad behaviour supposedly characteristic of certain racial groups.

Harm and offence

Perhaps the trickiest is whether we should ban speech that causes offence. Mill’s thought seemed to be that offence will cause discomfort, but discomfort is not a harm. At least, discomfort is not enough of a harm to outweigh the benefit of freedom of speech. There are at least two issues here that we would need to sort out. The first is to work out where to draw the line between speech that causes offence that should be banned, and speech that causes offence that should be allowed. The second is to work out whether there really is a difference, in principle, between offence and harm.

Some might say that any speech that gives offence should be banned. The implications of doing this would be draconian. Some people are very sensitive – imagine if I were offended by the very mention of homosexuality. Would that be a reason – any reason at all – to ban such speech? Knowing this fact about me, it might be polite not to bring the topic up in my company (on the other hand, there might be other reasons to do so), but that falls a long way short of banning it.

Social challenges

Others might say the mere fact that speech causes offence should never be a reason to ban it. As Voltaire’s biographer put it in summing up the great philosopher’s views, ‘I don’t agree with what you say but I will defend to the death your right to say it.’ This also does not seem right. Should people have to endure racist or sexist abuse? Should whole communities be made to feel uncomfortable by being described in derogatory terms? Somewhere between these two positions, a line needs to be drawn, but it is difficult to see where. On the other issue, whether there really is a clear distinction between harm and offence, Mill now seems a little naïve. We know more than he did about the psychological damage done to people by relentless hounding, or by hate speech.

Treading the line between being too restrictive about what people are allowed to say, and being too permissive, is one of the big challenges faced by societies. Getting it wrong either way brings real dangers. It is, perhaps, one of the best ways of judging a society to see where it draws the line.

Mill, John Stuart. (1974). On Liberty . London: Penguin Books.

Hall, Evelyn Beatrice. (2015). The Life of Voltaire . London: Arkose Press.

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Pros and cons of freedom of speech

Post author: Amos Gikunda
Post published: February 27, 2021
Post category: Government
Post comments: 0 Comments

If an individual or an institution has the freedom of speech, they can express their opinion without being restrained. The internet came out strong, and nowadays, people are using it to express what they feel and what they want. The social networks have escalated over a short period like Twitter, Facebook, WhatsApp, and many others, and they took everyone’s attention.

Pros of freedom of speech.

1. Exchange of ideas: People will exchange ideas as they have free speech; people in power will not be able to suppress what they know and what they want to give to other people. These allow progress and passing intelligence effortlessly from one person to another.

2. Expose crimes and bad morals: Freedom of speech will allow people to talk and express themselves when they see something is oppressing them. Like Edward Snowden, the time he exudes all the government Intelligence to the press enables people to see they can express themselves when they are oppressed by the governments.

3 . Peaceful changes: Speech is a powerful weapon one can with one-word people can live peacefully or fight. If people get to use this in a good way, people will live in peace. People will learn and help each other for the good of society.

4. Hate challenge: People can use freedom of speech to challenge other people with hateful ideas, like tribalism, racism, and many others. Peter Tatchell and activist suggest the idea, but it worked over a long period racism and tribalism is dropping fast.

5. Happiness: If the freedom of speech one day is taken away, people will not be able to express what they feel. The government can take that away one day that means no protest, no critics of government activities.

6. Income: Some people earn money through freedom of speech, e.g., artists, dancers, comedians, and others will make a lot of money in a good way.

Cons of freedom of speech.

1. False information: Freedom of speech will make people take advantage of it and spread false data. A lot of lies are told on the internet, and people pretend it’s true. The government sometimes uses the power of the internet in the wrong way to keep peace and avoid protests.

2. Violence: People can use these to hurt others, but everybody should be held an account for what they do. As I said before, speech is a toll. It can be used in a good way or the wrong way.

3. Paradox: Modern ideas will create ideas that will funnily hinder freedom of speech. The government does dictate things that we can have a say or not. Writers and activists will not have a say in public, but still, they want to express it to the public.

4. Forcing: Other people can take advantage of these to make a profit and hurt others by taking advantage of them on what they know, or they don’t.

5. Offensive: People can use this to offend others by expressing themselves or criticize others

Pros and Cons of Executive Orders

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Freedom of speech should not be restricted lightly

The david miller and kathleen stock cases underline the growing threat to human rights, say alison assiter and miriam david.

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Although debates about freedom of speech are not new, the form they take now seems to be more vindictive than hitherto.

Two recent case cases illustrate the point. Earlier this month, it was announced that the sociology professor David Miller had been sacked by the University of Bristol . The official reason was that his lectures about Israel, Jews and Zionism “did not meet the standards of behaviour we expect from our staff”.

His disciplinary hearing included a third-party investigation by an unnamed Queen’s Counsel who found that Miller’s comments “did not constitute unlawful speech”, but he was sacked anyway because of some unwritten rule about his “duty of care to his students”.

In the same week, students at the University of Sussex demanded the sacking of feminist professor of philosophy Kathleen Stock because her views about women are allegedly transphobic. The university’s vice-chancellor, Adam Tickell, supported her right to free speech over women’s rights versus “trans-rights” or gender identity. However, the local University and College Union branch was subsequently more equivocal, insisting that it was against calls “for any worker to be summarily sacked” but also calling for an investigation into “institutional transphobia” – prompting Stock to claim that it had “ effectively ended” her career at Sussex.

It is important to set these events in context. The right to freedom of expression, and the concept of human rights in general, is under attack. Right-wing populists such as Jair Bolsonaro, Donald Trump, Narendra Modi and Victor Orbán have found common cause with religious conservatives to deride the notion of fundamental individual rights. Yet, rather than defend them, many critics on the Left also deride rights as Enlightenment-inspired, Eurocentric figleaves for racism, sexism and imperialist apologism.

No doubt both sides of the arguments in both the Miller and Stock cases would claim to be defending human rights. However, the issue at Bristol is that an extreme action – the sacking of a prominent academic – was taken in a context where the “crime” is unclear.

Hate speech is recognised (and outlawed) in English law, but the concept is also commonly used in a non-legal context to designate any speech that is degrading, insulting, defamatory, negatively stereotyping or liable to incite hatred or violence against any group of people by virtue of their race, religion, nationality, sexual orientation or disability, for example. Both Miller and Stock engaged in such speech, their opponents allege.

The expression “hate speech” was coined by a group of US legal scholars in the 1980s. They noted that different legal systems tackled harmful racial discrimination variously. When Mari Matsuda used the term in 1989 , her central purpose was to highlight how the US legal system failed victims of harmful racist speech by providing them with inadequate means of seeking redress, civil or criminal. She cited several legal cases and examples not associated with actual legal proceedings and not easily actionable under the existing laws.

The concept of hate speech has been taken up by a range of people on the Left to condemn people they believe are misogynistic, racist or xenophobic and who, therefore, violate ideals of respect and tolerance. But it is also used by evangelicals to critique liberals who they regard as attacking their conservative beliefs.

Hence, the philosopher Caleb Young suggests that “hate speech” is too broad a term to be usefully analysed as a single category. It includes many kinds of speech acts, each of which involves very different free speech interests that may cause different kinds of harm. Young distinguishes four main categories of “hate speech”. Miller’s pronouncements seem to fall into his concept of “organised political advocacy for exclusionary and/or eliminationist policies”, while Stock’s seems to fall into “targeted vilification”. But neither are illegal.

Sacking Miller for making legal pronouncements risks eroding the human right to free speech. It also risks disrupting the process that underpins that Right’s rationale: allowing ideas to flourish and deriving truth, autonomy and justice to emerge from the healthy debate that ensues.

Regulating legal “hate speech” could also be regarded as damaging to democracy, especially if even universities shy away from such debate. According to free speech advocates, students ought to be encouraged instead to debate opinions with which they disagree. This is precisely what Stock’s defenders have argued, and it is hard to disagree.

In Miller’s case, although we are not privy to the exact statements considered by Bristol, there seems at least to be some controversy over what was said. Miller has claimed that he made factual claims about pro-Israel groups in the UK, which were misinterpreted as conspiracy theories about Israel and Jews and therefore mislabelled as antisemitism.

While we disagree strongly with many statements made by Miller, and particularly object to what we understand to be his didacticism, we believe that sacking is too extreme a punishment given the ambiguities surrounding what he actually intended to say and surrounding what counts as hate speech.

We sympathise with the students’ concerns, especially with regard to being able to express their disagreement with him. But we believe that these could all have been dealt with by less stringent and irrevocable a measure.

If rights and democracy are to survive the attacks on them, we must only curtail freedom of speech when its hateful intentions are unequivocal and codified in law.

Alison Assiter is professor of feminist theory at the University of the West of England and author of A New Theory of Human Rights: New Materialism and Zoroastrianism (Rowman & Littlefield, 2021). Miriam David is professor emerita of sociology of education at the UCL Institute of Education.

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Research & Learn

Limits to free speech.

Teach incoming students about when speech crosses the line and loses First Amendment protection. This module focuses primarily on defining and providing examples of freedom of speech limitations, such as harassment, true threats, intimidation, and other unlawful conduct. With this knowledge, students can more accurately gauge when their speech, or their peers’ speech, may be impermissible or may result in violations of others’ rights.

Use: Beyond use during digital or in-person orientations, the video can serve as a resource on university web pages explaining student speech rights.

Complete video adaptation for online teaching (length, 8:49)
Sample remarks for in-person instruction
Additional resources for students

Download in-person instructions

Sample Remarks for In-Person Instruction

At [college name] we value your right to participate in expressive activity that challenges orthodoxy and pushes boundaries. We hope that you will do this in a respectful manner, as civility makes it possible to engage in discussions that are truly meaningful—discussions in which we really listen and learn from each other.

The reality, however, is that not all interactions are respectful, and that’s as true on campus as it is in the community at large. You may experience discourse that will ruffle feathers or outright offend you or some of your peers. That may happen in meeting rooms, on the quad, or in social media posts directed at you or your friends.

Many decades of litigation have firmly established that the vast majority of speech, however offensive, is protected by the First Amendment. But it is important for you to understand the limits to your rights not just here on campus as students, but also as citizens in our broader community. While the First Amendment protects most speech, it is not a free pass to threaten, harass, or otherwise violate the rights of others.

In this next video, you’ll get an overview on three categories of speech that are not protected by the First Amendment.

Limits to Free Speech Lesson

The First Amendment’s protections include the vast majority of speech and expression, but it does have its limits. These limits have been carefully honed over decades of case law into a handful of narrow categories of speech that the First Amendment does not protect. Because of this winding legal landscape, there are many misconceptions as to what actually constitutes unprotected speech.

Whether you choose to be politically active on campus or just want to try your hand at stand-up comedy at an open mic night, it’s important to have an understanding of where the courts draw the line between protected and unprotected speech. So, let’s go through a quick rundown on some of the most commonly misunderstood categories of unprotected speech.

What are True Threats and Intimidation?

First, let’s talk about “true threats,” a recognized exception to the First Amendment. In the 2003 decision Virginia v. Black , the Supreme Court of the United States defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”. The Court also held that speech becomes unprotected intimidation when it is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death”.

These definitions place emphasis on the actual intent and seriousness of the threat. This allows the authorities to take things like bomb threats seriously while also stopping the government from punishing clearly hyperbolic expression, such as the infamous photo of Kathy Griffin holding a depiction of Donald Trump’s head or a gamer yelling “I’ll kill you!” at another Fortnite player. It’s important to keep in mind that these definitions envision speech or conduct aimed at a specific individual or set of individuals. They do not include more generalized comments.

In 2007, one student at Valdosta State University in Georgia learned the importance of the narrowly tailored definition of true threats.

Student Hayden Barnes chose to protest VSU President Ronald Zaccari’s plan to use $30 million in student fees to construct two parking garages on campus. He did so by emailing campus leaders with his environmental concerns, and posting a satirical collage on Facebook. The collage included pictures of Zaccari, a parking garage, and the caption “S.A.V.E. - Zaccari Memorial Parking Garage,” a sarcastic reference to statements Zaccari had made about preserving his “legacy” as president of VSU through the parking garages.

Claiming that Barnes’ use of the word “memorial” implied a threat to Zaccari’s safety, Zaccari had Barnes expelled on the grounds that he was a “clear and present danger” to the campus. Barnes filed a lawsuit in part on First Amendment grounds, and ultimately prevailed. Without the Supreme Court’s careful definition of true threats, those in power could punish anyone for pushing back against them, like Barnes did.

What is Incitement?

Speech also becomes unprotected when it is used to promote imminent violent or lawless action.

This exception, also known as incitement, originated from a 1969 case called Brandenburg v. Ohio . In that case, the Court distinguished between mere advocacy of lawless behavior and incitement to imminent lawless action. In order for speech to lose its protected status, the Court ruled that there had to be evidence that the language in question was being used to encourage immediate lawlessness and that illegal action was likely to take place.

Four years later, the Court applied this standard to a case involving an anti-war protester on a college campus. Gregory Hess had been arrested for disorderly conduct after he shouted that protesters would “take the fucking street later.” The Court overturned his conviction on the grounds that Hess’s speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.”

What is Harassment?

To be considered unlawful student-on-student (or peer) harassment, behavior must be unwelcome; discriminatory on the basis of a protected status, like gender or race; directed at an individual; and “so severe, pervasive, and objectively offensive” that the victim is “effectively denied equal access to an institution’s resources and opportunities.”

In short, isolated pure speech or expression is unlikely to constitute harassment on its own. To qualify as peer harassment, speech must be targeted, discriminatory, and typically part of a larger pattern of behavior that hinders the educational experience of the targeted individual.

Following someone, repeatedly targeting them with your conduct, and refusing to leave them alone after requests to do so can rise to the level of harassment that would land you in the student conduct office.

Let’s take a look at a case where a student was improperly charged with harassment by their university. Back in 2014, at the University of Oregon, a student was hanging out in her friend’s dorm when she looked out of a window and spotted two strangers, a male and female student, walking together. She proceeded to shout “I hit it first!” out the window at them in jest. Despite apologizing to the students when they confronted her about the joke, she was charged by the university with “harassment,” “disruption,” and “disorderly conduct.” Knowing her rights, this student pushed back against the university, and the charges were ultimately dropped.

Her speech may not have been the height of comedy, but it was absolutely not punishable by the university consistent with the First Amendment. If she had followed the other students to class and continued to yell at them, and if she had specifically targeted them for their identities, her speech might have crossed the line into harassment. But this isolated comment did not meet the Supreme Court’s standard for peer harassment.

Unlawful Conduct

The last category we’ll discuss is speech that involves unlawful or unprotected conduct such as vandalism, destruction of property, and disruption. While you may not agree with every event held on campus, every flyer you see, or every viewpoint you hear, vandalizing property or disrupting events is not protected expressive activity. This includes shout-downs, grabbing microphones, illegally recording others, blocking entrances, and related activity.

Now, some of the examples just mentioned are tactics used by some protesters as forms of civil disobedience. While civil disobedience can be a vehicle for change, you should remember that civil disobedience is, by definition, not protected speech or activity, and that participating in such activity can lawfully result in punishment. Knowing the law, and in particular knowing the limits to your First Amendment rights, is important before thinking about taking such actions.

The First Amendment has been held to allow you to wear a jacket that says “Fuck the Draft” in a public courthouse, yell “We’ll take the fucking street later!” during a protest, and burn the American flag in protest. You can even call for the overthrow of the United States government.

But the university administration has the ability to apply reasonable “time, place, and manner” restrictions. These restrictions apply narrow limits to when, where, and how a speaker may present a message. For example, while it may be permissible to shout “Stop the war!” or “Support our troops!” at noon in the open space on campus, the administration has the right to prevent the same speech from being delivered at the same decibel level in the hall of a dormitory at 3 AM or right outside of a classroom window, disrupting a class.

It’s important to understand that time, place, and manner restrictions are valid if they’re reasonable; however, the First Amendment does not permit targeting the actual content of speech in most instances. The goal of the university is the pursuit of knowledge, so it has a moral obligation to maintain an environment free of harassment and substantial disruption to the educational experience.

If you encounter speech that sets off some red flags for you, but you’re not necessarily sure if it crosses the line into any unprotected categories, consider reaching out to the dean of students or public safety. It doesn’t hurt to ask!

Your own voice is your most powerful tool when advocating for yourself, your fellow students, and your causes. If you see behavior that rubs you the wrong way, write an op-ed for your student newspaper, organize a protest, or join student groups that encourage the kind of environment you want to be around. Be proactive in creating the college community you want to be a part of.

Video Reflection

Note to administrators: The following sample remarks leave space to discuss your school’s specific policies on student expression. We encourage you to collaborate with your general counsel and/or dean of students to highlight your most relevant policies and provide realistic examples of speech that would violate your policies. Think about recent controversies that have occurred on your campus and which policies you wish your students understood better. Additionally, making the discussion on “time, place, and manner” restrictions more specific, so as to include the names of academic buildings and common spaces on campus, can give students a better idea of their rights. If your school has certain bulletin boards or other forums that facilitate spontaneous speech, think about highlighting those areas for your students.

The First Amendment is a powerful tool for responding to viewpoints or actions you disagree with, but it has its limits. While college is a time to explore your beliefs and push boundaries, you must make sure that your expressive activities are not at odds with the rights of others. No student should feel unsafe when expressing themselves, even those ideologically opposed to you.

As we just heard, on campus our administration can apply “time, place, and manner” restrictions. But those restrictions must be narrow and viewpoint-neutral.

It is important to know where we as an institution draw the line regarding inappropriate student conduct. Our school’s policies regarding [demonstrations / harassment / posting flyers / other policies you would like to highlight] can be found at [web URL or handbook name and page numbers]. If you have questions about any of these policies, please reach out to us. We can only have productive discourse on campus if we all understand our own rights and respect the rights of our fellow community members.

Additional Resources for Students

Unprotected Speech Cheat Sheet

Dos and Donts of Activism

Video: FIRE Presents: The Do's and Don'ts of Campus Activism

Video: The Talk': How to Do Free Speech

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Freedom of Speech in Social Media Essay

What are the advantages, disadvantages, and limits of freedom of speech in social media? Learn more below! This paper focuses on the importance of social media and freedom of speech.

Introduction

Social media & freedom of speech, hate speech on social media, reference list.

The freedom of speech is one of the crucial features of the democratic society. The personal liberty cannot be achieved without the ability to express your thoughts freely. It also means the opportunity to participate in the discussions and debates. George Orwell said, “If liberty means anything at all, it means the right to tell people what they do not want to hear”.

The media is a powerful mean of social progress nowadays. It is said that social media’s worldwide audience gives individuals new rights, responsibilities, and risks. Joshua Rozenberg claimed, “A tweet is not an email, it’s a broadcast”. The aim of this essay is to present my own opinion on the expressions by Orwell and Rozenberg and to discuss the influence of media on the human rights, responsibilities, and risks.

The social media represents the source and the mean of the information dissemination. It is difficult to imagine what the world would look like if we did not have the media. The dissemination of the true information is one of the pillars of the free society.

Nowadays, the breakthrough in this process has been achieved due to the development and implementation of the new media and information and communications technologies (ICTs) ( IMS Conference on ICTs, 2008). I agree with the statement of George Orwell, who said that the liberty “means the right to tell people what they do not want to hear”.

It goes without saying that all people are different and, thus, their views on the changes occurring in the surrounding world differ. However, the social progress cannot be achieved without the conflict solving and decision making. The availability of the different opinions contributes to the arriving at the best solution. The freedom of speech implies the opportunity of the unhampered expression of the opposite views.

How can we say about the liberty and personal freedom if we are afraid of protesting and arguing? The truly democratic society is the one, which encourages the independent thinking and the expression of the opposite views.

Katharine Gelber in her article ‘Freedom of Speech and Australian Political Culture’ considers the opinions of the Australian politicians, representing both the Coalition and Opposition in the beginning of the 1990s. Gelber tries to say that the history of the freedom of speech in Australia consists of the periods of the increasing public debates on the issue of human rights and their protection.

In 1992, the wide discussions contributed to the recognition of the freedom of speech in Australia (Gelber, 2011). Although the representatives of the various political parties have different views on the concept of freedom of speech, all of them indicate to its importance for the society.

Gelber says that the majority of Australians believe that the freedom of speech exists in the Australian society (Gelber, 2011). Undoubtedly, it shows that people feel their liberty in saying what the others do not want to hear.

There is a famous expression by Joshua Rozenberg, “A tweet is not an email, it’s a broadcast”. I think that he means that if the conversation includes more than two persons, it is public and it disseminates the information rapidly. In the context of the human rights, it can be said that the ‘tweet’ or wide discussions are vital for the dissemination of the information and contribute to the freedom of speech.

I agree with the statement that the social media’s worldwide audience gives individuals new rights, responsibilities, and risks. In this respect, censorship remains one of the most significant hazards. However paradoxical it looks at the first glance, the United States of America represents the bright example of the country with the freedom of speech, on the one hand, and the cases of censorship, on the other hand.

Patrick Garry in his book An American Paradox: Censorship in a Nation of Free Speech analyses the reasons for the existence of censorship in the country proclaiming the freedom of speech as one of the highest values. Garry finds the roots for this problem in the rapid dynamism of the American society.

The author also states that “as multiculturalism replaces the older, more traditional social model of Americanized homogeneity, speech and censorship will increasingly form the ethnic and cultural battleground of this change” (Garry, 1993, p. 14).

Undoubtedly, the freedom of speech is one of the most discrepant social and political issues. People’s words depend on their minds and their emotions. However, they are not always the positive ones and sometimes people are driven by hate. The history of mankind already has a lot of examples when the speech provoked the violence. The Nazi Germany is one of such examples.

The emotional speech of Adolph Hitler inspired millions of people to commit the crime against humanity. That is why it should be emphasized that the freedom of speech assumes the responsibility. It is said that “our most successful approach to defending our human rights and human dignity is to begin with the principle: Choose Love, Not Hate” ( Freedom of expression, no date).

Besides, it should be mentioned that the freedom of speech should not contradict the other human rights, including the intellectual property rights, the right to reputation, and others. The government intervention in the dissemination of the information should not go beyond the boundaries of the protection of the confidential information, reputation, public safety and order ( Freedom of expression, no date).

The debates provoked by the promulgation of the secret information by WikiLeaks shook the public. Although there were different views on the activity of the website, it is obvious that it made the confidential information public, thus, violating the right to privacy and supporting the freedom of speech.

According to Little, “there is a difference between disclosure of information relating to private lives of individuals and that relating to governments” (2013, par. 6). The European authorities support the freedom of speech but indicate to the importance of licensing of broadcasting and the verification of the information disseminated by the media ( Freedom of expression, 2007).

Connie Bennett and Rob Everett emphasize the importance of tolerance and understanding in the protection of the freedom of speech. At the same time, the authors state, “Free and open access to the universe of ideas not only enriches the lives of a country’s citizens; it protects them from the harm caused when ignorance and misinformation go unchallenged by facts” (Bennett and Everett, 2011, n.pag.).

The rapid development of the information technologies and the digital communication systems create the risks of inconsistent and false data dissemination as the role of the journalists and editors becomes vanished by the work of computers and Internet. At the same time, the modern technologies may help to overcome the bias in the information disseminated by the media.

There are a number of the social organizations aimed at protecting the freedom of speech and the activity of the journalists all over the world. In particular, Freedom House provides the support to the advocates of the human rights to defend the free media and the right to independent expression ( Freedom of expression, no date).

In order to sum up all above mentioned, it should be said that the freedom of speech is one of the main human rights. However, it remains one of the controversial social issues as well. The freedom of expression implies certain responsibilities including the respect to the privacy of other people as well as to the results of their intellectual activity.

The development of the information technologies changes the media and the communication systems. The new tendency creates both the opportunities for the facilitation of the freedom of speech and risks of the dissemination of the false information.

Annotated Bibliography

Bennett, C. and Everett, R. (2011) ‘Freedom of speech requires understanding and tolerance’, The Register Guard .

The authors touch upon the problem of the freedom of speech and the government restrictions. In particular, they emphasize the importance of the free libraries providing the opportunity to become familiar with the different opinions presented in the books.

Garry, P. (1993) An American paradox: censorship in a nation of free speech. Westport, CT: Praeger .

The book uncovers the paradox of the American society: the co-existence of the freedom of speech flourished by the public and the censorship, which restricts it. The author gives his own arguments explaining this phenomenon. In particular, he indicates to the significant changes occurring in the American society.

Gelber, K. (2011) ‘Freedom of speech and Australian political Culture’, University of Queensland Law Journal , 30(1), pp. 135-144.

The article is devoted to the recognition of the freedom of speech in Australia. It also encompasses the results of the survey aimed at investigation of the opinion of the Australians on their constitutional rights including the freedom of expression. The author presents the definitions of the freedom of speech given by the Australian politicians.

Freedom of expression.

The webpage is devoted to the freedom of expression as one of the basic human rights and describes the activity of Freedom House in its protection. The major branches of the organization’s support are mentioned on the webpage. Besides, it emphasizes the role of journalists and media in the realization of the freedom of speech.

IMS Conference on ICTs and networked communications environments: opportunities and threats for press freedom and democratization (2008).

The information presented in the source is devoted to the role of the information and communication technologies in the spreading of the freedom of speech and the facilitation of the democratic process in the different countries. It represents the report on the results of the IMS Conference. The advances in the technology and their impact on the media are discussed in the source.

Little, C. (2013) ‘Democracy depends upon free media and an informed public’, Miami Herald , 16 September.

The author of the article touches upon the controversy around the freedom of speech. She presents her own opinion on the collision of the human rights, which frequently occurs in the society. She also touches upon the activity of the much-talked-of website WikiLeaks.

Garry, P. (1993) An American paradox: censorship in a nation of free speech . Westport, CT: Praeger.

Freedom of expression (no date). Web.

Freedom of expression: a right with responsibilities (2007). Web.

IMS Conference on ICTs and networked communications environments: opportunities and threats for press freedom and democratization (2008). Web.

Little, C. (2013) ‘ Democracy depends upon free media and an informed public ‘, Miami Herald . Web.

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Regulating free speech on social media is dangerous and futile

Subscribe to the center for technology innovation newsletter, niam yaraghi niam yaraghi nonresident senior fellow - governance studies , center for technology innovation @niamyaraghi.

September 21, 2018

Amid recent news about Google’s post 2016 elections meeting , multiple Congressional hearings , and attacks by President Trump , social media platforms and technology companies are facing unprecedented criticism from both parties. According to Gallup’s survey , 79 percent of Americans believe that these companies should be regulated.

We know that an overwhelming majority of technology entrepreneurs subscribe to a liberal ideology . Despite the claims by companies such as Google , I believe that political biases affect how these companies operate. As my colleague Nicol Turner-Lee explains here , “while computer programmers may not create algorithms that start out being discriminatory, the collection and curation of social preferences eventually can become adaptive algorithms that embrace societal biases.” If we accept that the implicit bias of developers could unintentionally lead their algorithms to be discriminatory, then, with the same token, we should also expect the political biases of such programmers to lead to discriminatory algorithms that favor their ideology.

Empirical evidence support this intuition; By analyzing a dataset consisting of 10.1 million U.S. Facebook users, a 2014 study demonstrated that liberal users are less likely than their conservative counterparts to get exposed to news content that oppose their political views. Another analysis of Yahoo! search queries concluded that “more right-leaning a query it is, the more negative sentiments can be found in its search results.”

The First Amendment restricts government censorship

The calls for regulating social media and technology companies are politically motivated. Conservatives who support these policies argue that their freedom of speech is being undermined by social media companies who censor their voice. Conservatives who celebrate constitutional originalism should remember that the First Amendment protects against censorship by government. Social media companies are all private businesses with discretion over the content they wish to promote, and any effort by government to influence what social media platforms promote risks violating the First Amendment.

Moreover, the current position of the conservatives are in direct contrast to their positions on “Fairness Doctrine”. As my colleague Tom Wheeler explains here , “when the Fairness Doctrine was repealed in the Reagan Administration, it was hailed by Republicans as a victory for free speech.” Republicans should apply the same standard to both traditional media and the modern day social media. If they believe requiring TV and radio channels to present a fair balance of both sides is a violation of free speech, how can they favor imposing the exact same requirement on social media platforms?

Furthermore, the government intervention that they propose is potentially more damaging than the problem they want to solve. If conservatives believe that certain businesses have enough power and influence to infringe on their freedom of speech, how can they propose government, a much more powerful and influential entity, to enter this space? While President Trump’s administration and a Republican controlled Congress may set policies that would favor conservatives in the short term, they will also be setting a very dangerous precedent which would allow later governments to interfere with these companies and other news organizations in future. If they believe that today’s Twitter has enough power and will to censor them, they should be terrified of allowing tomorrow’s government to do so.

Breaking UP social media Companies does not help consumers

The second argument that supporters of regulating social media companies make is that these companies have created monopolies and therefore antitrust laws should be used to break them down and allow smaller competitors to emerge. While it is true that these companies have created very large monopolies, we should not neglect the unique nature of social media in which users will benefit the most only if they are a member of a dominant platform. The value of a platform for its users grows with the number of other users. After all, what is the use of Facebook if your friends are not there?

If conservatives genuinely believe in the value of competition and free choice, and at the same time believes that a more conservative social media platform would be of value to consumers, they should start a new platform rather than demanding the existing private platforms to become more inclusive of conservative ideas. Just like cable news channels are built to promote ideologies of a particular political party, social media platforms could also be built to promote conservative values.

Mandating ideological diversity is impossible

Others argue that social media and technology companies should become more ideologically diverse and inclusive by hiring more conservatives. I believe in the value of ideological and intellectual diversity. As an academic, I experience it on a daily basis through my interaction with students and colleagues from many different backgrounds. This helps me polish my ideas and create new and exciting ones. New ideas are more likely to emerge and flourish in an intellectually diverse environment.

However, measuring and mandating ideological diversity is impossible. Ideology is a spectrum, not binary. Rarely anyone agrees with all positions of a single party even if they are a member of it. Although in an extremely polarized political environment, Americans are increasingly favoring the more extreme ends of the political ideologies in both parties, many of the Republicans do not agree with current immigration policies of President Trump, just like many Democrats who do not agree that ICE should be abolished. Unlike other forms of diversity that promote gender, racial, and sexual equality in the work force, political ideology cannot be categorized within a limited number of groups. While we can look at the racial composition of the employees of a company and demand that they hire a representative sample of all races, it is not possible to demand for a representative sample of political ideologies in the workforce.

Acting to increase ideological diversity would be impossible. A candidate would hesitate to disclose party affiliation to an employer who may use it to make hiring decisions. What are the chances that a candidate tries to conceal a conservative ideology during an interview for a six-figure-salary job in an overtly liberal Silicon Valley company? If another company wants to become more diverse by hiring conservatives, would liberal candidates be inclined to present as conservative?

The political bias of social media companies becomes more concerning as more Americans turn to these platforms for receiving news and effectively turn them into news organizations. Despite these concerns, I believe that we should accept such bias as a fact and refrain from regulating social media platforms or mandating them to attain a politically diverse workforce.

Facebook and Google are donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

54 years after Kent State: What limits are there to freedoms of speech and protest?

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .

The 54th anniversary of the tragedy at Kent State University where Ohio national guardsmen fired into a crowd of anti-war protestors killing four students was Saturday.

As we again confront a wave of demonstrations at campuses across the country regarding the war in Gaza, it is important to be mindful of both the protections and limitations of the U.S. Constitution when it comes to protests.

Demonstrators are acting consistently with the First Amendment, and within an American tradition of civil disobedience, when they engage in peaceful protest. Though the First Amendment provides that government cannot limit freedom of “speech,” courts have long recognized that speech includes conduct — so long as it communicates a message.

'Utter turmoil': Former National Guardsman reflects on Kent State tragedy of May 4, 1970

How far can protests go legally?

Examples of expressive conduct may include marches, sit-ins, and even flag burning.

American thinkers from Thomas Jefferson to Henry David Thoreau to Martin Luther King have all endorsed acts of peaceful rebellion to bring government leaders to the negotiating table, which is the goal of many campus protestors.

However, when protestors move farther away from words and engage in destructive actions, they forfeit certain protections of the First Amendment. That is because conduct itself can typically be regulated and punished without offending the Constitution.

Protestors who destroy university property or invade classrooms and administrative buildings can be disciplined for this conduct, despite claims that they were acting in order to draw attention to their message.

The Supreme Court has held that anti-war demonstrators who burned their draft cards could be punished for destroying important Selective Service documents, so long as the government was not using the law to suppress the protestors’ message.

Does free speech come with restrictions?

The First Amendment also does not prevent the government from enforcing reasonable time, place, and manner restrictions on speech, as long as the rules are applied even-handedly. Thus, a government actor such as Ohio State University could impose reasonable limits on the hours of all protests, or the decibel levels of sound amplification systems.

What about encampments?

OSU’s prohibition against overnight encampments would likely be viewed as a reasonable restriction on the “manner” of speech, assuming it has been enforced consistently in the past.

The Supreme Court upheld a U.S. Park Service regulation that prohibited sleeping in Lafayette Park overnight as a reasonable “manner of speech” regulation, even applied to protestors attempting to call attention to the plight of the homeless.

Finally, the Constitution does not protect speech that goes beyond forceful advocacy, and in a few narrow circumstances words themselves can be punished if they are sufficiently threatening. For instance, if campus protestors urged imminent violence against university personnel or students, those words could likely be a grounds for punishment notwithstanding the protections of the First Amendment.

Ohio State protest wasn't peaceful. Activist, supporters should stop clutching their pearls

Supreme Court precedent makes clear that speakers who advocate imminent unlawful conduct can be punished if their words are uttered in circumstances where serious lawless conduct is likely to occur.

When does the response go too far?

Of course, even when the government is acting within its authority to regulate protests, it cannot use excessive force. To most observers, the guardsmen at Kent State shooting into a crowd of unarmed protestors was a tragic example of the improper use of force.

The military-style deployment of highly armed police at campus protests likewise could invite the escalation of violence. Institutions of higher learning, which seek to impart values of tolerance, civil discourse, and respect for others must explore every possible means of deescalating tense situations before resorting to force.

Ted Carter, you turned campus into military zone. Your goons crushed protester's rights.

Northwestern University and Brown University recently succeeded in doing just that, avoiding violence by negotiating a greements with their protesting students.

In the end, the First Amendment is a powerful tool that promotes democracy by limiting the power of government to squelch dissenting views. But it is up to us as citizens to exercise these freedoms in a responsible manner, consistent with the enjoyment of the blessings of liberty.

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .

COMMENTS

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President Bollinger is one of the nation's foremost First Amendment scholars. In addition to Social Media, Freedom of Speech, and the Future of our Democracy , he is the author or co-editor of numerous books on freedom of speech and press, including National Security, Leaks and Freedom of the Press: The Pentagon Papers Fifty Years On ...
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Conservatives who support these policies argue that their freedom of speech is being undermined by social media companies who censor their voice. Conservatives who celebrate constitutional ...
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Though the First Amendment provides that government cannot limit freedom of "speech," courts have long recognized that speech includes conduct — so long as it communicates a message ...
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Footnotes Jump to essay-1 Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000). Jump to essay-2 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995). Jump to essay-3 Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002).For additional background on the government speech doctrine, see Government Speech and Government as Speaker ...

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Table of Contents

Sample Remarks for In-Person Instruction

Limits to Free Speech Lesson

What are True Threats and Intimidation?

What is Incitement?

What is Harassment?

Unlawful Conduct

Video Reflection

Additional Resources for Students

Freedom of Speech in Social Media Essay

Introduction

Annotated Bibliography

Regulating free speech on social media is dangerous and futile

The First Amendment restricts government censorship