should there be limits to freedom of speech essay

University Observer

Skip to content

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

By Comment Editor | Apr 3 2017

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

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

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

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

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

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

Advertisement

Justifying Limitations on the Freedom of Expression

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

Cite this article

You have full access to this open access article

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

170k Accesses

11 Citations

29 Altmetric

Explore all metrics

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.

Similar content being viewed by others

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

Toleration and the Law

Avoid common mistakes on your manuscript.

Introduction

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

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

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

The Value of the Freedom of Expression

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

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

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

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

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

The Proportionality Test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Duty-Based Justificatory Approach

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

Duties of Justice

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

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

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

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

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

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

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

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

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

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

Is the Language of Duties Dangerous?

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

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

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

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

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

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

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

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

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

Books, Chapters, and Articles

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

Google Scholar  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mill JS (1859) On Liberty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Download references

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.

Author information

Authors and affiliations.

Harvard Law School, Cambridge, MA, USA

Gehan Gunatilleke

University of Oxford, Oxford, UK

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Gehan Gunatilleke .

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ .

Reprints and permissions

About this article

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

Download citation

Accepted : 26 October 2020

Published : 01 November 2020

Issue Date : March 2021

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

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Freedom of expression
• Limitations on rights
• Duties of justice
• State authority
• Justification
• Public reason
• Find a journal
• Publish with us
• Track your research

• History Classics
• Your Profile
• Find History on Facebook (Opens in a new window)
• Find History on Twitter (Opens in a new window)
• Find History on YouTube (Opens in a new window)
• Find History on Instagram (Opens in a new window)
• Find History on TikTok (Opens in a new window)
• This Day In History
• History Podcasts
• History Vault

Freedom of Speech

By: History.com Editors

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

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

Sign up for Inside History

Get HISTORY’s most fascinating stories delivered to your inbox three times a week.

By submitting your information, you agree to receive emails from HISTORY and A+E Networks. You can opt out at any time. You must be 16 years or older and a resident of the United States.

More details : Privacy Notice | Terms of Use | Contact Us

Freedom of Speech: Finding the Limits

Congress shall make no law . . . abridging the freedom of speech . . .

As part of the Bill of Rights, freedom of speech is guaranteed by the Constitution, but it is not defined by it. That task is left up to the people through a representative government that makes the laws and a judicial system that interprets and applies the laws to resolve disputes. When people bring their First Amendment challenges into the court system and decisions are made, principles get established that help define the boundaries of free speech for everyone.

While most Americans believe there should be some limits to free expression, there is much disagreement about what constitutes speech and where those limits should be. Consequently, freedom of speech ends up being our most contested right.

In this lesson, based on the Annenberg Classroom video “A Conversation on the Constitution: Freedom of Speech,” students gain insight into the many challenges involved in defining and protecting free speech. They also learn about principles that come from Supreme Court decisions and case law that are applied to define the limits for us today.

The estimated time for this lesson plan is three to four days.

Download the lesson plan

Standards Alignment

• National Standards for Civics and Government Grades 5-8
• National Standards for Civics and Government Grades 9-12

Related Resources

• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
• Timeline: First Amendment - Freedom of Speech
• Book: Chapter 6: The Right to Freedom of Speech
• Timeline: First Amendment
• Timeline: First Amendment Timeline

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.

• Abel, R. 1998. Speaking Respect, Respecting Speech . Chicago: University of Chicago Press.
• Abrams, F. 2006. Speaking Freely: Trials of the First Amendment . London: Penguin
• Alexander, A. 2005 Is There a Right to Freedom of Expression? . Cambridge: Cambridge Studies in Philosophy and Law.
• Allen, D. 1995. Freeing the first Amendment: Critical Perspectives on Freedom of Expression . New York: New York University Press.
• Anderson, E., 1991, “J.S. Mill's Experiments in Living” Ethics 102.
• Atkins, R. and S. Mintcheva (eds). 2006. Censoring Culture: Contemporary Threats to Free Expression . New Press.
• Edwin Baker, C., 1989. Human Liberty and Freedom of Speech . Oxford: Oxford University Press.
• Bird, A. 2002. “Illocutionary Silencing”, Pacific Philosophical Quarterly 83(1).
• Bollinger, L. 1988. The Tolerant Society . Oxford: Oxford University Press.
• Bollinger, L. and G. Stone. 2003. Eternally Vigilant: Free Speech in the Modern Era . Chicago: University of Chicago Press.
• Bosmajian, H. 1999. Freedom Not to Speak . New York: New York University Press.
• Braun, S. 2004. Democracy off Balance: Freedom of Expression and hate Propaganda Law in Canada . Toronto: University of Toronto Press.
• Byrd, C. 2006. Potentially Harmful: The Art of American Censorship . Georgia: Georgia State University Press.
• Butler, J. 1997. Excitable Speech: A Politics of Performance . London: Routledge.
• Coetzee, J.M. 1997. Giving Offense: Essays on Censorship . Chicago: University of Chicago Press.
• Cohen, J., 1993, “Freedom of Epression,” in Philosophy and Public Affairs , Vol 22, No.3.
• Cohen-Almagor, R. 2005. Speech, Media and Ethics: The Limits of Free Expression: Critical Studies on Freedom of Expression, Freedom of the Press, and th Public's Right to Know . Palgrave Macmillan.
• Cohen-Almagor, R. 2006. The Scope of Tolerance: Studies on the Cost of Free Expression and Freedom of the Press . Routledge.
• Council of Europe. 2007. Freedom of Expression in Europe: Case-Law Concerning Article 10 of the European Convention of Human Rights . Council of Europe.
• Couvares, F.G. 2006. Movie Censorship and American culture . Mass: University of Massachusetts Press.
• Curtis, M.K. 2000. Free Speech, “The People's Darling privilege”: Struggles for Freedom of Expression in American History . North Carolina: Duke University Press.
• Downs, D.A. 1992. The New Politics of Pornography . Chicago: University of Chicago Press.
• Dworkin, A., 1981, Pornography: Men Possessing Women . London: The Women's Press.
• Dworkin, R., 1977, Taking Rights Seriously . Cambridge: Harvard University Press.
• –––, 1985, A Matter of Principle . Cambridge: Harvard University Press.
• Edwin Baker, C. 1992. Human Liberty and Freedom of Speech . Oxford: Oxford University Press.
• Feinberg, J., 1984, Harm to Others: The Moral Limits of the Criminal Law . Oxford: Oxford University Press.
• –––, 1985, Offense to Others: The Moral Limits of the Criminal Law . Oxford: Oxford University Press.
• Fish, S. 1994, There's No Such Thing as Free Speech…and it's a good thing too . New York: Oxford University Press.
• Fiss, O.M. 1996. Liberalism Divided: Freedom of Speech and the Many Uses of State Power . Boulder: Westview Press.
• Flathman, R., 1987, The Philosophy and Politics of Freedom . Chicago: University of Chicago Press.
• Garry, P.M. 1994. Scrambling for Protection: The New media and the First Amendment . Pittsburgh: University of Pittsburgh Press.
• Gates, H.L. 1995. Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties . New York: New York University Press.
• Graber, M.A. 1992. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism . Berkeley: University of California Press.
• Gray, J., 1996, Mill on Liberty: A Defence . London: Routledge.
• Greenawalt, K. 1996. Fighting Words . Princeton: Princeton University Press.
• Hashim Kamali, Mohammad. 1997. Freedom of Expression in Islam . Islamic Texts Society.
• Hobbes, Thomas, 1968, Leviathan , ed. C.B. Macpherson. London: Penguin Books.
• Jacobson, D., 2000, “Mill on Liberty, Speech, and the Free Society,” in Philosophy and Public Affairs , 29 no.3.
• Kateb, G., 1989, “The Freedom of Worthless and Harmful Speech” in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar . ed. Bernard Yack. Chicago: University of Chicago Press.
• Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies , Vol 50.
• Langton, R., 1990. “Whose Right? Ronald Dworkin, Women, and Pornographers,” in Philosophy and Public Affairs , 19, no.4.
• –––, 1993, “Speech Acts and Unspeakable Acts,” in Philosophy and Public Affairs , Vol.22, No.4.
• Lewis, A. 1995. Make No Law . Random House.
• Lyons, D., 1994, Rights, Welfare, and Mill's Moral Theory . New York: Oxford University Press.
• MacKinnon, C., 1987, Feminism Unmodified . Cambridge: Harvard University Press.
• Magee, J. 2002. Freedom of Expression . Greenwood Press.
• Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property .Minneapolis: University of Minnesota Press.
• Mill, J.S., 1978, On Liberty . Indianapolis:Hackett Publishing Press.
• Nelson, S.P. 1994. Beyond the First Amendment: The Politics of Free Speech and Pluralism . Baltimore: Johns Hopkins University Press.
• Netanel, N.W. 2008. Copyright's Paradox: Property in Expression/Freedom of Expression . Oxford: Oxford University Press.
• O'Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory . Routledge.
• Pinaire, B. 2008. The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections . Stanford: Stanford University Press.
• Post, S.G. 2003. Human Nature and the Freedom of Public Religious Expression . University of Notre Dame Press.
• Rauch, J. 1995. Kindly Inquisitors: The New Attacks on Free Thought . Chicago: University of Chicago Press.
• Raz, J., 1986, The Morality of Freedom . Clarendon: Oxford University Press.
• Rees, J.C., 1991, “A Re-reading of Mill on Liberty” in J.S. Mill-On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Riley, J., 1998, Mill on Liberty . New York: Routledge.
• Scanlon, T., 1972, “A Theory of Freedom of Expression,” Philosophy and Public Affairs , 1, no.2.
• Schauer, F. Free Speech: A Philosophical Enquiry . Cambridge: Cambridge University Press.
• Shiffrin, S. 1990. The First Amendment: Democracy and Romance . Cambridge MA: Harvard University Press.
• Soley, L. 2002. Censorship INC.: The Corporate Threat to Free Speech in the United States . Monthly Review Press.
• Stone, G. 2004. Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism .
• Strum, P. 1999. When the Nazis came to Skokie: Freedom for Speech We Hate . Kansas University Press.
• Sunstein, C., 1994, Democracy and the Problem of Free Speech . New York: Free Press.
• –––, 1995. Democracy and the Problem of Free Speech . Free Press.
• –––, 2003. Why Societies Need Dissent . Cambridge MA: Harvard University Press.
• Ten, C.L., 1991, “Mill's Defence of Liberty,” in J.S. Mill—On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Walker, S. 1994. Hate Speech: The History of an American Controversy . University of Nebraska Press.
• Waluchow, W.J. 1994. Free Expression: Essays in Law and Philosophy . Oxford: Oxford University Press.
• West, C. 2003. “The Free Speech Argument Against Pornography”, Canadian Journal of Philosophy 33(3).
• West, Caroline, “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Fall 2005 Edition) , Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2005/entries/pornography-censorship/>.

[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

democracy | equality | Mill, John Stuart | paternalism | pornography: and censorship

THE ALGONQUIN HARBINGER

• Limitations are necessary for freedom of speech

Meredith Wu

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

Verina Hanna , Staff Writer March 17, 2022

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

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

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

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

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

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

— Verina Hanna

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

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

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

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

A donation of $40 or more includes a subscription to the 2023-24 print issues of The Harbinger. We will mail a copy of our fall, winter, spring and graduation issues to the recipient of your choice. Your donation supports the student journalists of Algonquin Regional High School and allows our extracurricular publication to purchase equipment and cover our annual website hosting costs.

• Mocking accents spreads unjust, offensive stereotypes
• The Great Debate: Should modern literature replace the classics in English class?
• The Director’s Eye: Heathers
• Excessive homework negatively impacts mental health, causes unnecessary stress
• Students given too much homework, not enough time

What is your favorite summer beverage?

• Pink Lemonade
• Fruity Refresher

View Results

• Polls Archive

The Requireds are tired

EDITORIAL: Control your own branding

Who to watch in this year’s Women’s March Madness Basketball

This year’s March Madness could be full of surprises 

Consume less: Save the Earth and our wallets 

Navigating the Buzz: Rethinking Caffeine Culture in High Schools

American tipping culture is out of control

Appreciate artists who didn’t win at the 2024 Grammys

The 1970s had music right

Give Us a Break: Seniors should be able to leave cafeteria studies

The official student news site of Algonquin Regional High School in Northborough, MA

• Corrections

Comments (9)

Cancel reply

Your email address will not be published. Required fields are marked *

Jay • Jan 24, 2024 at 2:04 pm

very much goodie read

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

kai • Jan 16, 2024 at 4:40 pm

pablo martinez • Dec 8, 2023 at 9:38 am

nah man this ain´t it

trad • Jan 30, 2023 at 6:05 pm

yay • Mar 10, 2023 at 12:06 pm

John Kadis • Jan 2, 2023 at 10:21 pm

I agree. Indeed this is the best article.

shahraib • Oct 6, 2022 at 5:10 am

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

liberty • Nov 9, 2022 at 1:16 pm

• The Great Debate
• Senior Issue
• Movies & TV
• Video Games
• Pro & College
• Cafe Takeaways
• Chicken Sandwich Chasers
• Club Detectors
• Hidden Gems
• The Racer Ru-view
• Print Issues

Explore the Constitution

The constitution.

• Read the Full Text

Dive Deeper

Constitution 101 course.

• The Drafting Table
• Supreme Court Cases Library
• Founders' Library
• Constitutional Rights: Origins & Travels

Start your constitutional learning journey

• News & Debate Overview
• Constitution Daily Blog
• America's Town Hall Programs
• Special Projects
• Media Library

America’s Town Hall

Watch videos of recent programs.

• Education Overview

Constitution 101 Curriculum

• Classroom Resources by Topic
• Classroom Resources Library
• Live Online Events
• Professional Learning Opportunities
• Constitution Day Resources

Explore our new 15-unit high school curriculum.

• Explore the Museum
• Plan Your Visit
• Exhibits & Programs
• Field Trips & Group Visits
• Host Your Event
• Buy Tickets

New exhibit

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

by Geoffrey R. Stone

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

by Eugene Volokh

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Money, Politics, and the First Amendment

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

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

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

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

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

The Meaning of “Low” Value Speech

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

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

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

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

Leaks of Classified Information

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

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

Professional-Client Speech

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

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

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

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

Crime-Facilitating Speech

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

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

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

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

“Hostile Environment Harassment” Rules

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

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

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

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

Modal title

Modal body text goes here.

Share with Students

Should Freedom of Speech be Limited

How it works

In this paper each author reflects their own moral opinion on hate speech shared with freedom of speech and the results from it containing negative content. There are several authors who discuss hate speech in considerations of freedom of speech. Despite strong objections I trust that society is obligated to protect its citizens and prevent any harm done in relation to hate speech under freedom of speech law.

First, In “Freedom of Speech” David van Mill argues freedom of speech in relation to the harm principle, he continues to argue two things: That speech can be limited due to the amount of offensiveness it causes and the effect on equality.

Mill then moves deeper into the meaning of paternalism and the moralistic reasons to not protect speech at all, addition to the harm principle. Paternalistic being limitations for the better good of someone or something, and moralistic being showing someone the differences between right and wrong. Mill is saying that the harm principle is something that we can potentially use and prevent someone from acting in violent ways and causing potential harm, thus protecting the security of others. In agreement with Mill, I believe that words can potentially lead to harm as such words offend those in the process. As in a society there are such things as racial slurs and profanity, that can be taken the wrong way by anyone it was intended for. I feel as if harmful words shouldn’t be a give right to everyone if not everyone can have the same respect equally, one should be peaceful morally with high value standards to one’s safety, happiness, and health. As people we should want everyone to feel the same and not a single one person should be singled out for something they cannot control, or chose to life by.

Although, Alexander and Horton defend freedom of speech to be seen on a democratic level due to the information that could possibly affect the society negatively. They then outline:

“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 other important ideals such as privacy, security, democratic equality and the prevention of harm and there is nothing inherent to speech that suggests it must always win out in competition with these values”

(Alexander and Horton, 1984).

Moral speech itself consists of many forms varying from speaking, acting, yelling, etc. Each form requiring diverse ways for one to express oneself to the public in any way; reasoning that one must protect the actions producing a fair democracy and promoting autonomy. People should be more focused on being moral when it comes to free speech, and become a moral person by using their rights to not express positivity not hate. David Mill strongly argues “That speech should be protected because it leads to the truth, there seems no reason to protect the speech of anti-vaccers or creationists” (David Mill, 1978). The concept of free speech is slightly difficult to defend due to, how we would have to decide as a country on how much we value the right to free speech and important ideas consisting of our privacy, security, and equality.

Mill believes that we should not value speech more than the security and safety of people, as the harm principle reflects a strong opposing view. While those points made were good points on the matter, John Stuart Mill makes a better argument with the harm principle in relation with free speech. John Mill argues 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” (John Stuart Mill, 1978). Looking at this view I agree with Mill strongly, as times it seems like those the law values the words of others more than the safety of those who have to live with the harm of those words. Free speech allows any words be spoken out which is fair, but to what extent does free speech becomes to harmful, like a threat that could potentially lead to a hate crime.

In some ways I agree with the points. Foremost, I agree that freedom of speech shouldn’t be a subject one would make changes to, as for all have the right to it, and the history of those written rights. I do reach agreement that limitations on the value of free speech would be debatable to limit. It is societies objective to make the rights of all, equal, safe, and right for all to undergo which is why we must protect its citizens from harm in any fashion. We would need to put a higher value on the security and safety of those as speech can potentially lead to becoming a possible violent altercation. Although, to argue this one can’t exactly put forceful restrictions on speech as that would be limiting rights of the people. Not only that but it’s difficult to relate just free speech to lead to physical encounters as there’s no hard evidence to prove that relation. If one could safely protect the rights of free speech and protect the safety of others without limiting the morality, it would make this argument more positively moral.

Applying this to our society, the initial obligation would be absolute freedom of opinion and speech moral or theological. This gives the obligation of everyone to say what they want to say which could lead to their logical limit and break into social embarrassment. Mill points out that in society one could have the right obligations to serve for the purposes of the people, “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” (John Stuart Mill, 1978). I believe society is obligated to protect the citizens and prevent any harm to them, to meet peaceful standards. Once the appropriate standards are found and met such actions could produce speech that doesn’t limit our safety, or make one feel threatened in our society.

One could argue this, stating that those who use targeted speech like hate speech doesn’t necessarily mean they want to do harm, not all those who use such words mean a direct threat. As Garcia’s response on racism claims that racism in relation to speech is merely an opinion and shouldn’t be blamed but looked at as a perspective. “we cannot classify a remark as racist hate speech simply on the basis of what was said, we need to look to why the speaker said it” (Garcia, 1996). Garcia shows that racism in relation to hate speech shouldn’t be a restriction on speech as it is speech expressed and should be disregarded.

To argue this, morally all should be treated with the same equality and rights we all share, to prevent and avoid doubt about the security of the people. I also argue such harms can be regulated justifiably, as some forms of hate speech can cause a type of harm and wrong doing to those its directed towards. Andrew Altman argues that “ Even when it involves no direct threat of violence, hate speech can cause abiding feelings of fear, anxiety, and insecurity in those whom it is targeted” (Altman, 1993). On a different aspect one person may not think their harmful words or hate speech may not be harming but it’s merely just a start of the abuse of freedom of speech. One’s free speech shouldn’t be used to bring or direct hate onto someone else, even if it may be how one feels its unnecessary to bring that upon someone. That’s morally wrong and should be looked down upon as that’s directly hateful in society itself.

To conclude, I strongly argue that speech expressing hatred to a certain group of people to shouldn’t be considered be morally considered free speech. As I stand on the societal obligation of equal rights, treatment, security, and protection of the people; that it shouldn’t be overlooked as anything other than such. We the people should feel safe and protected as a whole with no limitations unnoticed to protect this given right, as freedom of speech is a broad topic allowing negative aspects into society. I boldly believe hate speech is morally wrong to people and society should be strongly obligated to protect its citizens and prevent any harm, including speech that can lead to harsh casualties.

Cite this page

Should Freedom of Speech be Limited. (2021, Jun 13). Retrieved from https://papersowl.com/examples/should-freedom-of-speech-be-limited/

"Should Freedom of Speech be Limited." PapersOwl.com , 13 Jun 2021, https://papersowl.com/examples/should-freedom-of-speech-be-limited/

PapersOwl.com. (2021). Should Freedom of Speech be Limited . [Online]. Available at: https://papersowl.com/examples/should-freedom-of-speech-be-limited/ [Accessed: 30 May. 2024]

"Should Freedom of Speech be Limited." PapersOwl.com, Jun 13, 2021. Accessed May 30, 2024. https://papersowl.com/examples/should-freedom-of-speech-be-limited/

"Should Freedom of Speech be Limited," PapersOwl.com , 13-Jun-2021. [Online]. Available: https://papersowl.com/examples/should-freedom-of-speech-be-limited/. [Accessed: 30-May-2024]

PapersOwl.com. (2021). Should Freedom of Speech be Limited . [Online]. Available at: https://papersowl.com/examples/should-freedom-of-speech-be-limited/ [Accessed: 30-May-2024]

Don't let plagiarism ruin your grade

Hire a writer to get a unique paper crafted to your needs.

Our writers will help you fix any mistakes and get an A+!

Please check your inbox.

You can order an original essay written according to your instructions.

Trusted by over 1 million students worldwide

1. Tell Us Your Requirements

2. Pick your perfect writer

3. Get Your Paper and Pay

Hi! I'm Amy, your personal assistant!

Don't know where to start? Give me your paper requirements and I connect you to an academic expert.

short deadlines

100% Plagiarism-Free

Certified writers

Are Limits on Freedom of Speech Ever Justified?

Example of introduction to freedom of speech essay.

Most people in democratic states emphasize that freedom of speech is a necessity. For example, the United Nations Declaration of Human Rights, the U.S. Bill of Rights, and the European Convention on Human Rights usually stipulate that freedom of speech is a fundamental human right. These documents usually underline that Congress is not supposed to make any law that respects the establishment of religion, abridge the freedom of speech or the press and redress the rights of people to resemble peacefully. Every person has freedom of opinion and expression (Sadurski 24). In this perspective, every person has the right to make their own opinions to make hold their own opinions without any form of interference. People also have the freedom to express their opinions or ideas through any media regardless of limits imposed.

Example of Body Paragraphs to Freedom of Speech Essay

The United Nations General Assembly Resolution stipulates that every person has the freedom to express their opinion. In this perspective, everyone has the right to hold opinions, receive or impart information without any form of interference from a public authority. In this perspective, states can broadcast television or cinema enterprises without the interference of public authority. However, the exercise of these freedoms is supposed to encompass certain duties and responsibilities. This is explained by the fact that they are subjected to formalities restrictions and penalties which are prescribed by the law of a democratic society.

These duties and responsibilities that are exercised in the freedom of speech are supposed to ensure that the interests of national security, public safety, protection of others rights, maintain the authority of the judiciary, prevent confidential information from being disclosed, prevention of a crime, and for the protection of morals (Sadurski 12). When people are not given the right to exercise their freedoms in a democratic society, they often become chaotic. In this perspective, therefore, governments in democratic states ensure that people are allowed to practice their democratic rights in their country. Hence, the goal of this paper is to discuss whether the limits of freedom of speech are ever justified.

Discussion of the Freedom of Speech Limitations

The limitations imposed on the freedom of speech can be justified by the presence of certain people who are often offended when it is used to mock certain people. For example, in places of work, there are people who engage in certain activities in order to mock certain people who they regard as inferior. In this perspective, therefore, it is important to note that even though people are engaged in certain activities to express your freedom of speech, it is important to ensure that they do not offend other people by relaying the message (Wayne 5).

People would not be in a position to ask brave questions against the government or the church if there is no freedom of speech. If people have full respect for their government or the church, they would always keep their mouth shut. The first amendment in the freedom of speech is aimed at preventing people from being persecuted for their own ideas. Many people have misused their freedom of speech in the past, thereby leading themselves to be prosecuted for their own ideas. However, if an idea violates the rights of a person, then it should not be allowed. In this case, it is not necessary for people to be beaten up or be disrespected just because certain people think that they do not have value in the world or because of their skin color (Sadurski 5). However, people should not do things that offend other people.

Every person should hold himself responsible for any speech that he directs to harm another person. For example, a person may issue a speech that may cause a slander or cause certain people in a room to panic. In this perspective, an issue arises on whether one would need to limit when any person has the ability to sue another for the damages caused (Alexander 43). However, one needs to understand that the law only gives criminal remedy to something that is treated as civil.

There are various groups that become as offensive as they can to certain conservative groups. In this perspective, they normally harass, picket, threaten or even boycott. From this perspective, they can feed any strong response by ensuring that they increase the power of the government. In this perspective, they would shift the media to be on their side, thereby making the story to favor them. On the other hand, most conservatives are usually regarded as meek and they always try in vain to make sense of the childish behavior that the liberal groups engage in (Wayne 6). In this case, the liberal groups usually abuse the rights of the conservatives by stipulating that the exercise of rights by the conservative group in an abuse of the rights of the liberal groups.

Therefore, in this perspective, the solution would not be to limit the freedom of speech through the government. In this case, one needs to stand up to the bullies and claim for individual rights. For example, in high school, the best way to defeat a bully is not to cry or run to the teacher. The best mechanism to cope with this situation is by ensuring that the offender is punished and not care whether bullies would also be punished by the school. Though the government has abdicated their rights to protect the rights of citizens, it has also been noted to be busy inventing entitlements which infringe the citizens’ real rights (Alexander 44). It is, therefore, important for citizens to ensure that they do not give in to the pressures by the government and fight for their real rights.

Client's Review

" I ordered a cheap essay on this website. Guys, I was so surprised the essay was written better than I thought it'd be. "

Sara J. reviewed EliteWritings on August 15, 2018, via SiteJabber Click to see the original review on an external website.

In an article where the Supreme Court ruled out that teachers and students do not shed their constitutional rights to freedom of speech at the schoolhouse gate, this state of affairs should be regarded as horrendous. This case can be attributed to the controversy that is observed in the books that teachers are allowed to give to their students. This also covers the extent to which the teachers are allowed to talk about books. In this perspective, most students are normally led to believe in concepts that are not fully correct. In this perspective, the teachers are normally not allowed to express their opinions on how they feel about such situations (Powers 56).

This mostly happens in elementary and high school levels of the system of education. In this case, the students do not realize that they are being given garbage information since they are not in a position to differentiate between what is right or wrong. In this perspective, therefore, one would argue that the limiting of free speech among teachers promotes false education to the students.

Therefore, it is clear that the Supreme Court tries to shield students from the real world. In this perspective, it is not right to treat students like uneducated people when they go to school to learn. It is important to ensure that the students are made to learn the truth. They need to understand that the world is not close to perfection. It is important to deliver to the students that the world today is characterized by issues such as fatalities and controversies. In this perspective, therefore, it is important for the government and Supreme Court to ensure that by limiting teachers the freedom of speech would not in any way to help the students (Powers 56). On the contrary, it will only harm the upcoming future generations. Therefore, it is evident that when people are limited in their freedom of speech, they become inefficient in terms of knowing what the real world entails.

In colleges, for example, the censorship of information is usually carried out by other students. Most of these forms of censorship do not take legal forms. Most forms of censorship are carried out with the aim of preventing the bad light of certain groups from reaching the bigger audience. Thefts of newspapers that publish articles that comprise offensive information by various segments of the student body have been known to take place at an alarming rate since the 1990s. For example, in April 2002, a thousand copies of Texas Christian University Newspapers were stolen (Nelson 23). This extreme event took place because of two controversial articles that were published in the newspaper. The articles that made the newspaper be stolen concerned information about fraternity hazing and the other reflected a situation where a player in the women’s basketball team was accused of stealing a teammates’ credit card.

It is also true that college newspaper staffs are not immune to self-censorship. Some of the advertisements that are regarded as being very controversial do not get published. For example, in spring 2001 a conservative columnist, David Horowitz, made an advertisement to 48 college newspapers across the U.S. The publication was entitled “Ten Reasons Why Reparations for Slavery are a Bad Idea.” In this case, only 14 college newspapers published the advertisement. However, several of the colleges that published the advertisement later apologized. In this perspective, it is evident that conservatives are not the only ones whose right to free speech is ignored (Nelson 25). There have been incidences when advertisements which stipulate that advertisement is not murder have also been ignored.

It is clear that issues on whether free speech can be justified are not only evident at the college level or high school level. From the examples, one can see that censorship is usually carried out for various reasons. Some of these reasons are often trivial, whereas others are personal or trivial. Political speeches normally get a lot of attention and they are, therefore, the key targets for censorship (Cram 45). The infringement of free speech in schools and outside the education environment remains a controversial issue. With regard to the issue of whether there should be limits to free speech, many authors still wonder whether free speech should be unrestricted completely.

Most forms of expression are normally harmless and, hence, protected by the right to freedom of expression. However, while seeking or receiving information from certain societies, it is important for one to understand that there are those societies that can tolerate various incitements such as murder or sale of pornography to children (Hare and Weinstein 5). However, it is important for one to understand that freedom of expression is not absolute and it can be limited whenever it is found to conflict with certain rights.

International law requires that the freedom of expression should be regarded as a rule. The limitations that should be imposed must be aimed at protecting the rights and reputations of other people, national security, public order, public health, and morals. Freedom of expression should not be limited in the case of a public official. In order for the freedom of speech to be limited, the law must be applied that is entrusted by the lawmakers. In this perspective, therefore, it is important for the regulation to meet various standards that can help clarify so that people can see the consequence of their actions (Hare and Weinstein 7). If the actions are worded in a vague manner and appear as unclear, they would not be treated as legitimate and, thus, the information should not be treated as controversial.

Now I know that your writers are indeed experts because they know how to carry out research just like my teachers expect me to do. I am thankful to your writers and online agents who always reply to my concerns. Jessica

I used a couple of other services, who only spoiled my grades. EliteWritings.com was like a savior in my life and I gradually improved my reputation. Josh

English writing is definitely not my strongest point and I always make silly mistakes. I surfed the web and found your company. You sent me a good paper with impressive ideas. I really appreciate your help. Anthony

Your writers are really competent and hard working. I’ve purchased a difficult research project and to my surprise – I got excellent! Thanks! Addison

Wonderful writing service and friendly writers who always communicate with customers! I realized that your company can be trusted when you sent me good papers within short deadlines. James

My writer forgot about a part of requirements, but I requested revision and he adjusted the needed part. I got the revised paper shortly and the paper looked just like I was expecting. Lily

I was afraid to buy midterm coursework from you, but I did not know how to deal with my topic in computer sciences. I got 93% for the project and was ecstatic. I will surely use your services more. Logan

I’ve bought some essays from you and you guys are wonderful! Your writers sent me amazing essays! Mia

I did not know about your company and my friend recommended me to order essays from you. Your writer sent me my essays on time and I did not find any mistakes! Abigail

I always forget how to use different citation styles and formatting remains challenging for me. I found out that your company offers cheap formatting services and I sent you the paper. Since that time, my teacher never deducts points for formatting mistakes. Alexander

I am a horrible writer and I would rather pass several tests than work on essays. I found your service and you guys are great! You offered me good discounts and I am pleased to get affordable papers. Cooperation with you is worth it. Zoe

Quick and good service! Olivia

I am so bad in writing that I thought I would fail every class. One of my friends told me to use your services and I could not believe my eyes. Your writers managed to improve my academic records very fast! Thank you. Samantha

I am so lucky! Your essays improved my reputation. Taylor

It is essential to have a legitimate aim so that the freedom of expression can be limited. For example, the limitation can be carried out in the case if it is aimed at respecting rights, protecting national security or sustaining public health, order or morals. In case if these conditions are not met, then no limitation should be imposed. Hence, it is true that any limitation to the freedom of expression should be truly necessary. This means that regardless of whether a limitation is in accordance with the law, it would only pass the test if it is regarded as truly necessary so as to help protect a legitimate aim. As a result, it is true that if a limitation is not needed then there is no need to impose it (Cram 24). In most cases when the international courts stipulate that national laws should not be impermissible to limitations, such limitations are not deemed to be necessary.

Example of Conclusion to Freedom of Speech Essay

To sum up, it is clear that even though people should be allowed to practice their freedom of speech there are certain issues when limitation should be imposed. There are certain cases when people are allowed to communicate freely, this can lead to issues such as ruin of a person’s reputation, cause national insecurity, as well as destabilize public order, health, and morals. Therefore, in this perspective, it is important to ensure that before limitations are imposed that the issue in question is needed. Hence, limiting freedom of speech is justified in certain occasions.

More About Persuasive Essay Writing

• What is the purpose of a persuasive essay ?
• How to write a persuasive essay ?
• What persuasive essay topics were good in 2016 ?
• How to choose good persuasive essay topics in 2020 ?

Free Persuasive Essay Examples from Elite Essay Writers

Argumentative, book report, environment, evidence-based practice, informative, please notice.

Some text in the modal.

Jump to navigation

• Inspired to Serve. Sworn to Uphold

The Limits of Free Speech

Published: May 1, 2017

The First Amendment allows us to speak our mind and stand up for what we believe in. However, the limits on free speech are rooted in the principle that we’re not allowed to harm others to get what we want. That’s why we’re not allowed to use to speech for force, fraud, or defamation.

Discussion Questions 

• Why is it a good idea include close substitutes for speech in protections under the First Amendment?
• Are you allowed to advocate for the use of force in the abstract, as with the Marxist position for the forcible overthrow of the government? Is that different from calls for immediate force?
• While your intention may not be to harm others through free speech, what if someone feels threatened by it nonetheless?
• Why is fraud not allowed under freedom of speech?

The First Amendment guarantees freedom of speech. But does that mean we're allowed to say anything we want?

Well, not quite.

The limits on free speech come from the basic principle that you're not allowed to harm others to get what you want.

You can win in the marketplace, with better goods and lower prices, and even put your competition out of business, but you're not allowed to use

speech to threaten to hurt someone, either verbally or nonverbally.

And you're not allowed to deceive people to get what you want – that's called fraud. You'd be harming them because they're relying on false information.

Free speech means you can:

Proclaim your beliefs and passions,

argue your opinions,

and speak out against what you consider to be injustices.

As long as you don't defame or abuse people, OR advocate the immediate use of force

OR intentionally misrepresent the truth to people... or to those who they might deal with,

You have the freedom to share whatever is on your mind.

View the discussion thread.

• Connect with us

© 2024 by the Board of Trustees of Leland Stanford Junior University | Privacy Policy

Student Newspaper at Michigan Tech University since 1921

Published Weekly on Tuesdays Office Located in Walker 105

• May 29, 2024

Check us out

Debate: should free speech have limitations.

• October 5, 2017
• 29 Comments

PRO (Samm Stein):

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

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

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

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

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

CON (Sam LaMarche):

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

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

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

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

29 Responses

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

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

I would agree but explain

I think that I do not like this article.

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

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

tf does slavery have to do w/ this?

i am gay jk i am cool????

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

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

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

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

I spoke my mind

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

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

What do you mean by protect the innocent?

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

this is useless

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

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

u just wrote my essay 4 me, kisses :33

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

Leave a Reply Cancel reply

You must be logged in to post a comment.

The Lode 1400 Townsend Drive Houghton, MI 49931

 • Privacy Policy •

Website By: SmartCreative

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.

• Censorship in the United States
• "Shooting an Elephant" by G. Orwell Review
• The Coopers v. G. Fox and Partners Inc. Case
• Print media is dead
• Printed Newspapers in US
• The Newspaper Publishing Industry in Australia
• Do People Believe Everything in the Internet?
• Media futures and new technologies
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2019, April 22). Freedom of Speech in Social Media Essay. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/

"Freedom of Speech in Social Media Essay." IvyPanda , 22 Apr. 2019, ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

IvyPanda . (2019) 'Freedom of Speech in Social Media Essay'. 22 April.

IvyPanda . 2019. "Freedom of Speech in Social Media Essay." April 22, 2019. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

1. IvyPanda . "Freedom of Speech in Social Media Essay." April 22, 2019. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

Bibliography

IvyPanda . "Freedom of Speech in Social Media Essay." April 22, 2019. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

• Share full article

Advertisement

Supported by

guest essay

Is There a Constitutional Right to Talk About Abortion?

By Linda Greenhouse

Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

There has hardly ever been as fierce a defender of free speech as the current Supreme Court.

Since John Roberts became chief justice almost 19 years ago, the court has expanded the protective net of the First Amendment to cover such activities as selling videos depicting animal torture, spending unlimited amounts of money in support of political candidates and refusing to pay dues (or a dues-like fee) to a public employee union.

This last decision, Janus v. American Federation of State, County and Municipal Employees, Council 31, overturned a 41-year-old precedent and led a dissenting justice, Elena Kagan, to accuse the majority of “weaponizing the First Amendment.” In the 303 Creative case last year, the court gave a Christian web designer the First Amendment right not to do business with would-be customers whose same-sex wedding websites would violate her views about marriage.

The court’s version of free speech has become a powerful tool against government regulation. Six years ago, effectively striking down a California law, the court gave so-called crisis pregnancy centers — offices that try to imitate abortion clinics but strive to persuade women to continue their pregnancies — a First Amendment right not to provide information on where a woman could actually get an abortion. The state said the notice was needed to help women who came to such centers under the false impression that they provided abortions. In his majority opinion, Justice Clarence Thomas said the “unduly burdensome” requirement amounted to unconstitutionally compelled speech.

Now the question is whether the court’s solicitude toward those who would rather not talk about abortion extends in the other direction. What about state laws that prohibit rather than require offering information about where to get an abortion?

While there is not yet such a case on the Supreme Court’s docket, lower courts have been tightening a First Amendment noose around efforts by anti-abortion states to curb the flow of information about how to obtain legal abortion care across state lines. Federal District Courts in Indiana and Alabama both ruled this month that while states in the wake of Roe v. Wade’s demise can ban abortion, they cannot make it illegal to give abortion-related advice, including advice to minors seeking abortions without parental consent.

A federal magistrate judge issued a similar ruling last November on Idaho’s abortion law, one of the most extreme in the country, which makes it a crime to assist a minor in obtaining an abortion in any state without a parent’s consent. Idaho could criminalize abortion, the judge, Debora Grasham, wrote. “What the state cannot do,” she went on, “is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights.” The United States Court of Appeals for the Ninth Circuit heard Idaho’s appeal on May 7.

With the Supreme Court extremely unlikely to revisit its decision 23 months ago in Dobbs v. Jackson Women’s Health Organization that eradicated the constitutional right to abortion, the question of how far states can go to prevent their citizens from finding alternative ways to terminate a pregnancy will become increasingly urgent. In his concurring opinion in the Dobbs case, Justice Brett Kavanaugh raised the question of whether a state could now “bar a resident of that state from traveling to another state to obtain an abortion.” The answer was “no,” he continued, “based on the constitutional right to interstate travel.” It is worth noting that Justice Kavanaugh wrote only for himself; none of the other conservatives who made up the Dobbs majority joined him. “Other abortion-related legal questions may emerge in the future,” Justice Kavanaugh offered noncommittally.

The future arrived quickly enough in the form of the two abortion-related cases awaiting decision before the court’s current term, which concludes at the end of June or in early July. Both are anomalous in that they involve questions of federal rather than state authority.

One, Food and Drug Administration v. Alliance for Hippocratic Medicine , concerns the government’s approval of the expanded use of the medication that first received F.D.A. approval 24 years ago. Medication abortion now accounts for more than half of abortions in the United States. The case contains an off-ramp for the court that, based on the argument in March, the justices appear likely to take: Because the anti-abortion doctors, dentists and medical groups who challenged the F.D.A. suffered no harm from the availability of the medication, and are unlikely to suffer harm in the future, they never had standing to bring the case in the first place.

The other, Moyle v. United States, results from a clash between the federal government and Idaho over whether federal law requires the state to provide emergency abortion care in its hospitals. The outcome largely depends on whether the court accepts the Biden administration’s view that there is no abortion exception to the law at issue, which prohibits hospitals from turning away people who need emergency care.

In the abortion cases in Indiana, Idaho and Alabama that may yet find their way to the Supreme Court, the justices would face the acute dilemma of reconciling their fealty to the First Amendment with the profound anti-abortion sentiment the Dobbs majority opinion displayed.

In defending their laws, the states argue that what they are prohibiting is not actually speech but conduct, namely inducing criminal activity. Rejecting this argument in the Indiana case, Judge Sarah Evans Barker of Federal District Court wrote that the Planned Parenthood affiliate that challenged the law simply “seeks to provide truthful information to clients regarding out-of-state options and medical referrals to out-of-state providers for abortion services that are legal in those states.” A prohibition on providing such information, the judge said, “does not further any interest Indiana may have in investigating criminal conduct within its borders.” In the Alabama case, another Federal District Court judge, Myron Thompson, observed that “unable to proscribe out-of-state abortions, the attorney general interprets state law as punishing the speech necessary to obtain them.”

From the cases they are in the process of deciding this term, the justices are well aware that their effort to wash their hands of the nettlesome business of abortion has failed. One or more of the First Amendment cases is likely to reach the court during its next term. I wonder if the justices have a clue about how much pain lies ahead when they have to decide whether the right to speak inevitably encompasses the right to choose.

Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow the New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .