free speech is an example of

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

10 Freedom of Speech Examples You Need to Know

By Scott A. Leadingham

The First Amendment protects freedom of speech , which means the government can’t prevent people from speaking or punish them for what they say, nor can the government force people to speak if they don’t want to.

But “speech” and the freedom to do it goes beyond the literal act of speaking words out loud. In the U.S., free speech under the First Amendment is broadly applied to many aspects of expression, including writing and listening to music, wearing your preferred clothes in public, performing and viewing a dance recital, writing and reading a book, making and watching movies, creating and appreciating art, donating to a candidate for office, or putting a sign with profanity in your yard.

However, like other First Amendment freedoms, there are legal limits to speech.

The First Amendment detailing the five freedoms it ensures has only 45 words, and what exactly qualifies as free speech is not spelled out word-for-word. Rather, since the First Amendment was added to the Constitution in 1791, the U.S. Supreme Court and lower courts have defined free speech and its exceptions through numerous cases. That's where these freedom of speech examples come in.

Freedom of speech does not cover all forms of speech , including some examples like defamation and libel , making threats , plagiarism , copyright infringement , and obscenity .

In this post we highlight freedom of speech examples based on what courts have ruled over the years.

Discover 10 freedom of speech examples from throughout U.S. history

1. flag burning and desecration.

The act of burning or destroying an American flag is controversial. But it's also a freedom of speech example.

Multiple members of Congress have tried unsuccessfully to pass constitutional amendments to make it illegal. Currently, burning or destroying a flag, sometimes called flag desecration , is speech protected under the First Amendment . The U.S. Supreme Court addressed the topic in a 1989 case ( Texas v. Johnson ). The court ruled in favor of Gregory Lee Johnson , who had been convicted under a Texas law that outlawed flag desecration. Johnson poured kerosene on a flag and set it on fire while protesting at the 1984 Republican National Convention in Dallas. In deciding the case and overturning the state law, the court said the act of burning a flag, while provocative and possibly offensive, is protected expression that counts as free speech under the First Amendment. The next year, the Supreme Court reaffirmed this idea in striking down a federal law prohibiting flag desecration in United States v. Eichman .

2. Political speech

True threats are not protected by the First Amendment  because they can cause someone to fear for their life. But what exactly qualifies as a true threat, as opposed to saying something mean or something that is interpreted as threatening when it really is not, is not so clear cut. The Supreme Court has said a reasonable person must think the threat is actionable and fear for their safety and that the speaker must understand or recklessly disregard that what they are saying is a threat. When it comes to speaking about a political figure, the bar for what qualifies as an actual threat is high.

It is illegal to threaten the president , vice president and certain high-ranking officials. However, political speech, even words that are aggressive or perceived as hateful, is largely protected speech. The Supreme Court ruled on this in 1969 (Watts v. United States). Robert Watts was charged with threatening President Lyndon B. Johnson for saying at an anti-war rally that "if they ever make me carry a rifle, the first man I want to get in my sights is LBJ." The court ruled that Watts "had engaged in a crude form of political hyperbole." The court said his statements came during a political rally, and people who heard his remarks laughed. In other words: It was not a true threat but was protected political speech.

3. Prayer in school

The First Amendment’s establishment clause prevents the government, including public schools, from imposing any religious belief or favoring one religion over another. Public school students may use their First Amendment freedoms of religion and speech to practice their religion in school, including through prayer. In practice this means students may pray by themselves or in groups and meet to talk about matters of faith, including in extracurricular clubs held on campus.

However, schools may restrict prayer (and other activities such as protesting) if it interferes with the learning environment. Public school teachers and staff can also pray and practice their religious beliefs while at school as long as they don’t require or pressure students to join.

Multiple Supreme Court cases have led to this landscape of free speech and religious rights for being able to pray or not be forced to in public schools. In 1962, the court said a New York law requiring a prayer at the beginning of the school day violated the First Amendment. Other Supreme Court decisions in 1992 ( Lee v. Weisman ) and 2000 ( Santa Fe Independent School District v. Doe ) meant public schools could not require prayer at high school graduation or a student-led prayer over the loudspeaker at football games.

Prayer at high school football games is not totally out of bounds. In 2022, the court ruled ( Kennedy v. Bremerton School District ) in favor of a Washington state football coach who had been fired after refusing to stop praying on the field after games. The court said the coach had a First Amendment right to exercise his religious and speech rights through the prayer so long as students were not pressured or required to join.

4. Saying (or not saying) the Pledge of Allegiance  

Saying what you want without being punished is considered free speech. Remaining silent can also be a freedom of speech example. While many schools begin their days by reciting the Pledge of Allegiance in classrooms (sometimes over the public address system), public school students cannot be required to say it .

The reason stems from two cases involving Pennsylvania and West Virginia students who were Jehovah’s Witnesses. The students felt swearing an allegiance to a government violated their religious faith, and they were expelled for refusing to say the pledge. In 1940, the Supreme Court ruled ( Minersville School District v. Gobitis ) that a Pennsylvania law requiring students to stand and recite the pledge did not violate the First Amendment. Three years later, the court considered another case from West Virginia students claiming the same thing as the Pennsylvania case. The students had refused to say the pledge and were threatened with reform school. In 1943 ( West Virginia State Board of Education v. Barnette ), the court reversed its previous ruling and said students have a free speech and religious freedom right not to stand or recite the pledge.

@1stforall Are students allowed to refuse to participate in the Pledge of Allegiance? 🇺🇸  #FirstAmendment #FreeSpeech #FYP #ForYou #ForYou #ForYourPage #America #America #American #AmericanFlag #TikTok #students #school ♬ original sound - Freedom Forum

5. Speech and protest in public schools

Unlike the right to vote, the right to free speech and other First Amendment freedoms doesn’t begin at 18. Students under age 18 in public schools still have free speech rights , though that right is not unlimited. Public school administrators can set limits on students’ speech and expression (including what they wear) if such limits are in place to make sure the learning environment is not disrupted.

The case that set the standard for public school students and freedom of speech came in 1969 ( Tinker v. Des Moines Independent Community School District ). Three students, Mary Beth Tinker, 13, John Tinker, 15, and Christopher Eckhardt, 16, were punished by their school for wearing black armbands, a type of speech meant to protest the Vietnam War. The Supreme Court ruled that public school students have their right to free speech, so administrators can’t censor speech just because they think something could be disruptive. Rather, the school must prove the speech has or will substantially disrupt the learning process, which is a higher bar to clear.

6. Political signs  

Every election season brings a common sighting: the political sign , which advocates for or against certain candidates or causes. The Supreme Court identifies these types of signs as the most important type of speech to protect. Regulating political signs and other political speech must only be done without regard for the message itself and instead be done for a non-speech reason, such as to protect public safety by keeping signs of all kinds (political or otherwise) from cluttering state highways. Even these “content-neutral” restrictions on speech must be enforced equally across all viewpoints.

Electioneering is a term to describe several kinds of advocacy and campaigning, like holding political signs, handing out brochures, wearing candidate-specific clothing, asking people to sign petitions, or trying to persuade someone to vote a certain way. All states and the District of Columbia regulate electioneering at voting sites, though not all the same way. This list shows all the electioneering regulations for all states and Washington, D.C. Generally, electioneering restrictions are only upheld if they are narrowly written (for instance, there can be no campaigning within 100 feet of the ballot box on election day).

7. What you wear  

This freedom of speech example has nothing to do with spoken word. What you wear is an example of free expression, which is protected speech under the First Amendment. Public schools have more leeway to restrict clothing or impose dress codes in order to preserve the learning environment.

Multiple state legislatures have tried to restrict drag performances, particularly for drag shows and drag story hours at libraries and where children might attend. In 2023, a federal judge struck down a Tennessee law that restricted drag performances, calling it “unconstitutionally vague and substantially overbroad.” The judge said that while obscenity is not protected by the First Amendment, there is a difference between the legal definition of obscenity and what people merely think is obscene. Also in 2023, a different federal judge struck down a similar Texas law on First Amendment grounds.  

@1stforall Are drag performances protected by the First Amendment? #Drag #DragQueen #FirstAmendment #FreeExpression #FYP #ForYouPage ♬ original sound - Freedom Forum

Many people create and appreciate art. They also spend plenty of time considering what, exactly, constitutes art. Whether painting oil on canvas, sculpting marble or putting objects in a jar, all can fall under the term art. And all can be protected speech under the First Amendment. The Supreme Court has broadly defined “art” and generally avoids imposing its own views on what is and is not art based on its own judgments as to quality, beauty, value, etc.

As with other forms of speech and expression, there are some narrow ways government can censor art under the First Amendment. For example, a public street art performance that uses full nudity and sex acts could be censored because narrowly drafted public nudity laws have been upheld even against First Amendment challenges.

One example of free speech colliding with attempts at government censorship came in 1999 in New York City. As a practicing Catholic and the city’s mayor, Rudy Giuliani didn’t like the publicly funded Brooklyn Museum displaying artist Chris Ofili's painting "The Holy Virgin Mary." The piece used elephant dung and bare butts cut from magazines. Giuliani said it was "sick" and thought it was sacrilegious. He threatened to cancel a larger exhibition at the museum if Ofili’s work wasn't removed. Giuliani cut off the museum's budget and said he'd make it vacate the building. The museum sued . A federal judge said the mayor violated the First Amendment. Ofili, who is Black and Catholic, called his painting "a hip-hop version" of the Virgin Mary. His work returned to the city in 2018 after being donated to the Museum of Modern Art.

9. Writing and reading books

Like art, books come in many styles, sizes and preferences. They also are broadly protected by the First Amendment, meaning the government cannot prevent books from being published and can’t stop people from buying or reading them except in very limited cases. However, standards of obscenity still apply for how and where they are distributed and displayed. Public schools and libraries also may restrict books for educational appropriateness. Parents also have a First Amendment right to petition school boards and public library boards to remove books from curriculum or put them in adults-only sections. That’s one reason the topic of book bans and other censorship attempts is in the news so much.

Today it is uncommon for a book to be stopped from being published – a restrictive government act known as “ prior restraint ” that often violates the First Amendment. However, it wasn’t uncommon in the not-too-distant past. Some books on modern lists of classic literature in the U.S. had a difficult time being printed, distributed and displayed in libraries due to attempts to ban them as obscene. These include works like “Ulysses” by James Joyce (1922), “Tropic of Cancer” by Henry Miller (1934), “The Catcher in the Rye” by J.D. Salinger (1951), and “Naked Lunch” by William S. Burroughs (1959).

Burroughs’ book and the many attempts to ban it helped set the stage for books that government officials tried to block from being published and distributed because they were considered obscene. In 1964, the Supreme Court ruled ( Grove Press v. Gerstein ) that books, like movies , can’t be considered obscene merely because they have sexual material. The standard for obscenity was higher, and obscene material had to be “utterly without redeeming social value.” By that standard, most books and movies were not considered legally obscene but rather were examples of free speech protected by the First Amendment.

10. Political donations

Of all the freedom of speech examples on this list, this one may be the most misunderstood.

It’s said that “money talks” about how currency influences, well, everything, but it can also apply to how it’s perceived as a form of speech in politics. Individuals have a right to donate money to their preferred candidates and causes, but what about corporations, unions and nonprofit organizations? When it comes to campaign donations, do these nonhuman entities have the right to use their money as a form of free speech just as individual people do?

The Supreme Court addressed that in a much-watched 2010 ruling ( Citizens United v. Federal Election Commission ). The court ruled that political spending by corporations and other groups is a form of speech protected by the First Amendment. According to the court, groups don’t have power to spend as much as they want directly supporting candidates, but they can spend unlimited amounts on ads and other forms of direct-to-voters media such as paid-for documentaries, billboards and books.

At the center of a case was a political action group named Citizens United, which had produced documentaries opposing Democrats John Kerry and Hillary Clinton for president in 2004 and 2008, respectively. The Federal Elections Commission limited distribution of the Clinton film, saying it violated campaign finance law passed by Congress in 2002. In ruling for Citizens United, the court said efforts to limit political spending by corporations and other groups violated their First Amendment right to free speech.

The bottom line on freedom of speech examples and current challenges

Since the First Amendment was added to the Constitution as part of the Bill of Rights in 1791, there have been freedom of speech examples stemming from how government tried to enforce restrictions, censor speech and use obscenity laws to keep people from speaking. The First Amendment doesn’t say anything about art, books, clothing or political spending, but they are all examples of how speech is defined and protected.

The U.S. no longer sees the kinds of broad restrictions on speech that resulted in comedians being arrested on stage, theater owners being prosecuted for showing movies with sex scenes, or publishers stopped from printing books. But there are still many questions about how far the First Amendment goes in protecting speech in all its forms.

Do protesters have a right to say anything they want when advocating for their cause or are there limits when people feel threatened or offended? If parents don’t like books found in school libraries or curriculum, how far can the government go in removing them? Are there ways that drag shows and other forms of gender-based expressive performances can be limited that don’t violate the First Amendment

These and other free speech examples frame the modern debate over how the First Amendment ensures everyone can use their right to freedom of speech and exactly what limits the government may impose that are not neatly spelled out in those 45 words.

Scott A. Leadingham is a Freedom Forum staff writer.  Email  

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Freedom of Speech

Definition of freedom of speech, what is freedom of speech, freedom of speech amendment, freedom of speech quotes, freedom of speech examples in legal cases, gitlow v. new york (1925), brandenburg v. ohio (1969), related legal terms and issues.

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Student Opinion

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

By Michael Gonchar

• Sept. 12, 2018

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

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

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

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

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

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

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

Acknowledgments

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

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

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The first amendment, schenck v. united states: defining the limits of free speech.

November 2, 2015 | by Joshua Waimberg

Note:  Landmark Cases , a C-SPAN series on historic Supreme Court decisions—produced in cooperation with the National Constitution Center—continues on Monday, Nov. 2 at   9pm ET. This week’s show features  Schenck v. United States .

In a case that would define the limits of the First Amendment’s right to free speech , the Supreme Court decided the early 20 th -century case of Schenck v. United States .

The case began, as many do, with an act of Congress. Shortly after the United States entered into World War I, Congress passed the Espionage Act of 1917. It was passed with the goals of prohibiting interference with military operations or recruitment, preventing insubordination in the military, and preventing the support of hostile enemies during wartime.

At the time, Charles Schenck was an important Philadelphia socialist. He was the general secretary of the Socialist Party of America, and was opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section One of the 13 th Amendment , which outlawed slavery and involuntary servitude. Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet’s other side, titled “Assert Your Rights,” told conscripts that, “[i]f you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and Elizabeth Baer, another member of the Socialist Party who was also charged, were both convicted following a jury trial and sentenced to six months in prison.

Schenck and Baer appealed their convictions to the Supreme Court. They argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the First Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the First Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s First Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, even though the Act only applied to successful efforts to obstruct the draft, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

When it came to the Act’s alleged violation of the First Amendment, the Court found that context was the most important factor. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech. Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

It was only a year later that Holmes attempted to redefine the standard. In the 1919 case of Abrams v. United States , the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio , a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

The Espionage Act of 1917 lives on as well. Since the decision in Schenck v. United States , those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Chelsea Manning and Edward Snowden have also been charged under the Act.

Joshua Waimberg is a legal fellow at the National Constitution Center.

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The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices . It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government .

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“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.”

—U.S. Supreme Court Justice Benjamin N. Cardozo in Palko v. Connecticut

Freedom of speech, the press, association, assembly, and petition: This set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. It is the foundation of a vibrant democracy, and without it, other fundamental rights, like the right to vote, would wither away.

The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. The organization’s work quickly spread to combating censorship, securing the right to assembly, and promoting free speech in schools.

Almost a century later, these battles have taken on new forms, but they persist. The ACLU’s Speech, Privacy, and Technology Project continues to champion freedom of expression in its myriad forms — whether through protest, media, online speech, or the arts — in the face of new threats. For example, new avenues for censorship have arisen alongside the wealth of opportunities for speech afforded by the Internet. The threat of mass government surveillance chills the free expression of ordinary citizens, legislators routinely attempt to place new restrictions on online activity, and journalism is criminalized in the name of national security. The ACLU is always on guard to ensure that the First Amendment’s protections remain robust — in times of war or peace, for bloggers or the institutional press, online or off.

Over the years, the ACLU has represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

Some examples of our free speech work from recent years include:

• In 2019, we filed a petition of certiorari on behalf of DeRay Mckesson, a prominent civil rights activist and Black Lives Matter movement organizer, urging the Supreme Court to overturn a lower court ruling that, if left standing, would dismantle civil rights era speech protections safeguarding the First Amendment right to protest.
• In 2019, we successfully challenged a spate of state anti-protest laws aimed at Indigenous and climate activists opposing pipeline construction.
• We’ve called on big social media companies to resist calls for censorship.
• We’re representing five former intelligence agency employees and military personnel in a lawsuit challenging the government’s pre-publication review system, which prohibits millions of former intelligence agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval.
• In 2018, we filed a friend-of-the-court brief arguing that the NRA’s lawsuit alleging that the state of New York violated its First Amendment rights should be allowed to proceed.
• In 2016, the we defended the First Amendment rights of environmental and racial justice activists in Uniontown, Alabama, who were sued for defamation after they organized against the town’s hazardous coal ash landfill.
• In 2014, the ACLU of Michigan filed an amicus brief arguing that the police violated the First Amendment by ejecting an anti-Muslim group called Bible Believers from a street festival based on others’ violent reactions to their speech.

Today, years of hard-fought civil liberty protections are under threat.

To influence lawmakers, we need everyone to get involved. Here is 1 action you can take today:

Intro.9.2.22 Gonzalez v. Trevino : Free Speech, Retaliation, First Amendment

The Free Speech Clause of the First Amendment prevents the government from unduly abridging the freedom of speech. 1 Footnote U.S. Const. amend. I ( Congress shall make no law . . . abridging the freedom of speech . . . . ). The Supreme Court has held that some restrictions on speech are permissible. See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech ; see also Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech . Though the Clause refers to Congress and making law, its prohibition extends beyond legislative acts to all branches and offices of government. 2 Footnote See Miami Herald Pub’g Co. v. Tornillo , 418 U.S. 241 (1974) (observing that the Free Speech Clause applies to any government agency—local, state, or federal ) (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels. , 413 U.S. 376, 400 (1973) (Stewart, J., dissenting)). In particular, individuals may initiate legal proceedings against federal or state officials for violating their right to free speech. 3 Footnote An action brought against a federal official for violating constitutional rights is known as a Bivens action, after the Supreme Court case that established the right to file such an action. Bivens v. Six Unknown Named Agents , 403 U.S 388 (1971) . An individual may bring an action against a state official for violating constitutional rights under a federal civil rights statute known as Section 1983. 42 United States Code, Section 1983. For more information on these actions, see ArtIII.S2.C1.13.4 Suits Against the United States and Sovereign Immunity . One basis for such a claim may be that an official took adverse action against the individual in response to the individual engaging in protected speech.

The Supreme Court has held that a plaintiff claiming to have suffered retaliation in violation of the Free Speech Clause must first demonstrate that the plaintiff engaged in constitutionally protected speech and such speech was a motivating factor behind the official’s adverse action. 4 Footnote Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle , 429 U.S. 274, 287 (1977) . If the plaintiff demonstrates this, the official must show that it would have taken the same action absent the protected speech. 5 Footnote Id. The Supreme Court has held that a plaintiff alleging retaliatory prosecution—that is, being charged with a crime in retaliation for speech—must also prove that their prosecution was not supported by probable cause, as required by the Fourth Amendment . 6 Footnote Hartman v. Moore , 547 U.S. 250, 265–66 (2006) ; U.S. Const. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ). In Nieves v. Bartlett , the Court recognized an exception to the probable cause rule, holding that a plaintiff alleging retaliatory arrest need not show a lack of probable cause if the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. 7 Footnote Nieves v. Bartlett , 587 U.S. 391, 406 (2019) .

In Gonzalez v. Trevino , the Court was asked to weigh in on the scope and application of the probable cause exception articulated in Nieves . Sylvia Gonzalez, a former city council member, organized a petition while in office to oust the city manager. 8 Footnote Gonzalez v. City of Castle Hills , No. 5:20-CV-1151-DAE, 2021 WL 4046758, at *1 (W.D. Tex. Mar. 12, 2021) , rev’d sub nom. Gonzalez v. Trevino , 42 F.4th 487 (5th Cir. 2022) , cert. granted , 144 S. Ct. 325 (2023) ; see Joint App. at JA-2, Gonzalez v. Trevino , No. 22-1025 (U.S. Dec. 11, 2023) . Later, Gonzalez was arrested on charges that she violated a government records law after placing the petition in her personal binder at the conclusion of a city council meeting. 9 Footnote See Petition for a Writ of Certiorari at 6–7, Gonzalez v. Trevino , No. 22-1025 (U.S. Apr. 20, 2023) ; Brief in Opposition at 2–3, Gonzalez v. Trevino , No. 22-1025 (U.S. June 8, 2023) . The charges against Gonzalez were later dismissed by the district attorney. 10 Footnote Gonzalez , 2021 WL 4046758,at *2 . Gonzalez brought a federal civil action against three city officials alleging that her arrest was retaliatory in violation of the First Amendment . 11 Footnote Id. Gonzalez provided data taken from county records indicating that, of the past indictments, prosecutors did not apply the law to situations resembling her circumstances. 12 Footnote Id. at *6 .

A federal district court held that Gonzalez’s evidence of general charging data was sufficient to invoke the Nieves exception and she therefore did not need to demonstrate a lack of probable cause for her arrest. 13 Footnote Id. The U.S. Court of Appeals for the Fifth Circuit reversed. 14 Footnote Gonzalez , 42 F.4th 487 . The Fifth Circuit observed that the language of Nieves speaks of comparative evidence . . . of otherwise similarly situated individuals who engage in the same conduct. 15 Footnote Id. at 492 (quoting Nieves v. Bartlett , 587 U.S. 391, 406 (2019) ). The court concluded that general data that the charge had never been used in similar circumstances did not meet this standard. 16 Footnote Id. Gonzalez appealed to the Supreme Court. In addition to arguing that objective evidence, including charging data, may satisfy the Nieves exception, Gonzalez argued more broadly that the lack of probable cause requirement applicable in retaliatory arrest cases should not apply to her case, because the requirement applies only when the claims are based on split-second decisions to arrest. 17 Footnote Petition for a Writ of Certiorari, supra note 9, at 25–26.

On June 20, 2024, the Supreme Court reversed in a per curiam opinion, holding that the Fifth Circuit misapplied the principles of Nieves . 18 Footnote Gonzalez v. Trevino , No. 22-1025, slip op. (U.S. June 20, 2024) . The Court explained that the Nieves exception does not require evidence of virtually identical and identifiable comparators. 19 Footnote Id . at 4 . Instead, the Court recognized that evidence that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel, — is sufficient to invoke Nieves . 20 Footnote Id . at 5. The Court declined to address Gonzalez’s second argument that Nieves did not apply to her case, having resolved the case on the basis of Gonzalez’s first argument. 21 Footnote Id .

Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.

Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests. 22 Footnote Supreme Court of the United States Granted & Noted List , October Term 2023 Cases for Argument, No. 22-1025 , https://www.supremecourt.gov/docket/docketfiles/html/qp/22-01025qp.pdf .

CONSTITUTIONAL PROVISION IMPLICATED: First Amendment , Free Speech Clause

CONSTITUTIONAL TOPIC: Freedom of Speech

SUPREME COURT DOCKET NUMBERS: 22-1025 23 Footnote Docket for 22-1025 , U.S. Supreme Court , https://www.supremecourt.gov/docket/docketfiles/html/public/22-1025.html .

APPEAL FROM: U.S. Court of Appeals for the Fifth Circuit

LOWER COURT CASE NUMBER: 21-50276

DECISION BELOW: 42 F.4th 487

ORAL ARGUMENT: March 20, 2024 24 Footnote Oral Argument Transcript, Gonzalez v. Trevino , No. 22-1025 (U.S. Mar. 20, 2024) , https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-1025_8m58.pdf .

FINAL DECISION: June 20, 2024

Justice Alito concurring

Justice Kavanaugh concurring

Justice Jackson (joined by Justice Sotomayor) concurring

Justice Thomas dissenting

•   Jump to essay-1 U.S. Const. amend. I ( Congress shall make no law . . . abridging the freedom of speech . . . . ). The Supreme Court has held that some restrictions on speech are permissible. See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech ; see also Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech .
•   Jump to essay-2 See Miami Herald Pub’g Co. v. Tornillo , 418 U.S. 241 (1974) (observing that the Free Speech Clause applies to any government agency—local, state, or federal ) (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels. , 413 U.S. 376, 400 (1973) (Stewart, J., dissenting)).
•   Jump to essay-3 An action brought against a federal official for violating constitutional rights is known as a Bivens action, after the Supreme Court case that established the right to file such an action. Bivens v. Six Unknown Named Agents , 403 U.S 388 (1971) . An individual may bring an action against a state official for violating constitutional rights under a federal civil rights statute known as Section 1983. 42 United States Code, Section 1983. For more information on these actions, see ArtIII.S2.C1.13.4 Suits Against the United States and Sovereign Immunity .
•   Jump to essay-4 Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle , 429 U.S. 274, 287 (1977) .
•   Jump to essay-5 Id.
•   Jump to essay-6 Hartman v. Moore , 547 U.S. 250, 265–66 (2006) ; U.S. Const. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ).
•   Jump to essay-7 Nieves v. Bartlett , 587 U.S. 391, 406 (2019) .
•   Jump to essay-8 Gonzalez v. City of Castle Hills , No. 5:20-CV-1151-DAE, 2021 WL 4046758, at *1 (W.D. Tex. Mar. 12, 2021) , rev’d sub nom. Gonzalez v. Trevino , 42 F.4th 487 (5th Cir. 2022) , cert. granted , 144 S. Ct. 325 (2023) ; see Joint App. at JA-2, Gonzalez v. Trevino , No. 22-1025 (U.S. Dec. 11, 2023) .
•   Jump to essay-9 See Petition for a Writ of Certiorari at 6–7, Gonzalez v. Trevino , No. 22-1025 (U.S. Apr. 20, 2023) ; Brief in Opposition at 2–3, Gonzalez v. Trevino , No. 22-1025 (U.S. June 8, 2023) .
•   Jump to essay-10 Gonzalez , 2021 WL 4046758,at *2 .
•   Jump to essay-11 Id.
•   Jump to essay-12 Id. at *6 .
•   Jump to essay-13 Id.
•   Jump to essay-14 Gonzalez , 42 F.4th 487 .
•   Jump to essay-15 Id. at 492 (quoting Nieves v. Bartlett , 587 U.S. 391, 406 (2019) ).
•   Jump to essay-16 Id.
•   Jump to essay-17 Petition for a Writ of Certiorari, supra note 9, at 25–26.
•   Jump to essay-18 Gonzalez v. Trevino , No. 22-1025, slip op. (U.S. June 20, 2024) .
•   Jump to essay-19 Id . at 4 .
•   Jump to essay-20 Id . at 5.
•   Jump to essay-21 Id .
•   Jump to essay-22 Supreme Court of the United States Granted & Noted List , October Term 2023 Cases for Argument, No. 22-1025 , https://www.supremecourt.gov/docket/docketfiles/html/qp/22-01025qp.pdf .
•   Jump to essay-23 Docket for 22-1025 , U.S. Supreme Court , https://www.supremecourt.gov/docket/docketfiles/html/public/22-1025.html .
•   Jump to essay-24 Oral Argument Transcript, Gonzalez v. Trevino , No. 22-1025 (U.S. Mar. 20, 2024) , https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-1025_8m58.pdf .

Human Rights

The ongoing challenge to define free speech, by stephen j. wermiel.

Freedom of speech, Supreme Court Justice Benjamin Cardozo declared more than 80 years ago, “is the matrix, the indispensable condition of nearly every other form of freedom.” Countless other justices, commentators, philosophers, and more have waxed eloquent for decades over the critically important role that freedom of speech plays in promoting and maintaining democracy.

Yet 227 years after the first 10 amendments to the U.S. Constitution were ratified  in 1791 as the Bill of Rights, debate continues about the meaning of freedom of speech and its First Amendment companion, freedom of the press.

This issue of Human Rights explores contemporary issues, controversies, and court rulings about freedom of speech and press. This is not meant to be a comprehensive survey of First Amendment developments, but rather a smorgasbord of interesting issues.

One point of regular debate is whether there is a free speech breaking point, a line at which the hateful or harmful or controversial nature of speech should cause it to lose constitutional protection under the First Amendment. As longtime law professor, free speech advocate, author, and former American Civil Liberties Union national president Nadine Strossen notes in her article, there has long been a dichotomy in public opinion about free speech. Surveys traditionally show that the American people have strong support for free speech in general, but that number decreases when the poll focuses on particular forms of controversial speech.

The controversy over what many call “hate speech” is not new, but it is renewed as our nation experiences the Black Lives Matter movement and the Me Too movement. These movements have raised consciousness and promoted national dialogue about racism, sexual harassment, and more. With the raised awareness come increased calls for laws punishing speech that is racially harmful or that is offensive based on gender or gender identity.

At present, contrary to widely held misimpressions, there is not a category of speech known as “hate speech” that may uniformly be prohibited or punished. Hateful speech that threatens or incites lawlessness or that contributes to motive for a criminal act may, in some instances, be punished as part of a hate crime, but not simply as offensive speech. Offensive speech that creates a hostile work environment or that disrupts school classrooms may be prohibited.

But apart from those exceptions, the Supreme Court has held strongly to the view that our nation believes in the public exchange of ideas and open debate, that the response to offensive speech is to speak in response. The dichotomy—society generally favoring free speech, but individuals objecting to the protection of particular messages—and the debate over it seem likely to continue unabated.

A related contemporary free speech issue is raised in debates on college campuses about whether schools should prohibit speeches by speakers whose messages are offensive to student groups on similar grounds of race and gender hostility. On balance, there is certainly vastly more free exchange of ideas that takes place on campuses today than the relatively small number of controversies or speakers who were banned or shut down by protests. But those controversies have garnered prominent national attention, and some examples are reflected in this issue of Human Rights .

The campus controversies may be an example of freedom of speech in flux. Whether they are a new phenomenon or more numerous than in the past may be beside the point. Some part of the current generation of students, population size unknown, believes that they should not have to listen to offensive speech that targets oppressed elements of society for scorn and derision. This segment of the student population does not buy into the open dialogue paradigm for free speech when the speakers are targeting minority groups. Whether they feel that the closed settings of college campuses require special handling, or whether they believe more broadly that hateful speech has no place in society, remains a question for future consideration.

Few controversies are louder or more visible today than attention to the role and credibility of the news media. A steady barrage of tweets by President Donald Trump about “fake news” and the “fake news media” has put the role and credibility of the media front and center in the public eye. Media critics, fueled by Trump or otherwise, would like to dislodge societal norms that the traditional news media strives to be fair and objective. The norm has been based on the belief that the media serves two important roles: first, that the media provides the essential facts that inform public debate; and, second, that the media serves as a watchdog to hold government accountable.

The present threat is not so much that government officials in the United States will control or even suppress the news media. The Supreme Court has probably built enough safeguards under the First Amendment to generally protect the ability of the news media to operate free of government interference. The concern is that constant attacks on the veracity of the press may hurt credibility and cause hostility toward reporters trying to do their jobs. The concern is also that if ridicule of the news media becomes acceptable in this country, it helps to legitimize cutbacks on freedom of the press in other parts of the world as well. Jane E. Kirtley, professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota and past director for 14 years of the Reporters Committee for Freedom of the Press, brings her expertise to these issues in her article.

Other current issues in our society raise interesting free speech questions as well. It is well-established  law that the First Amendment’s free speech guarantee only applies to government action. It is the government— whether federal, state, or local—that may not restrict freedom of speech without satisfying a variety of standards and tests that have been established by the Supreme Court over the past century. But the difference between government action and private regulation is sometimes a fine line. This thin distinction raises new questions about freedom of speech.

Consider the “Take a Knee” protests among National Football League (NFL) players expressing support for the Black Lives Matter movement by kneeling during the National Anthem. On their face, these protests involve entirely private conduct; the players are contractual employees of the private owners of the NFL teams, and the First Amendment has no part to play. But what could be more public than these protests, watched by millions of people, taking place in stadiums that were often built with taxpayer support, debated by elected politicians and other public officials, discussed by television commentators because of the public importance of the issue. That is not enough to trigger the application of the First Amendment, but should it be? First Amendment scholar David L. Hudson Jr., a law professor in Nashville, considers this and related questions about the public-private distinction in his article.

Another newly emerging aspect of the public-private line is the use of social media communications by public officials. Facebook and Twitter are private corporations, not government actors, much like NFL team owners. But as one article exams in this issue, a federal court recently wrestled with the novel question of whether a public official’s speech is covered by the First Amendment when communicating official business on a private social media platform. In a challenge by individuals who were barred from President Trump’s Twitter account, a federal judge ruled that blocking access to individuals based on their viewpoint violated the First Amendment. If the ruling is upheld on appeal, it may open up an entire new avenue of First Amendment inquiry.

One aspect of current First Amendment law is not so much in flux as in a state of befuddlement. Courts have long wrestled with how to deal with sexually explicit material under the First Amendment, what images, acts, and words are protected speech and what crosses the line into illegal obscenity. But today that struggle that has spanned decades seems largely relegated to history because of technology. The advent of the relatively unregulated Internet has made access to sexually explicit material virtually instantaneous in the home without resort to mailed books and magazines or trips to adult bookstores or theaters.

In his article, law professor and First Amendment scholar Geoffrey R. Stone elaborates on much of the legal and social history and current challenges in handling sexually explicit material, drawing on his own 2017 book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century .

If there is a unifying theme in the articles in this issue of Human Rights, it may be that while as a nation, we love our freedoms, including freedom of speech and freedom of the press, we are never far removed—even after more than two centuries—from debates and disputes over the scope and meaning of those rights .

Stephen J. Wermiel is a professor of practice of constitutional law at American University Washington College of Law. He is past chair of the American Bar Association (ABA) Section of Civil Rights and Social Justice and a current member of the ABA Board of Governors.

The views expressed here are the author's and do not reflect those of the ABA Board of Governors.

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• Introduction
• Which government actions are subject to the First Amendment?
• Freedoms of speech, of the press, of assembly, and to petition

Speech on government property and in government-run institutions

• Related rights
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Permissible restrictions on expression

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Despite the broad freedom of expression guaranteed by the First Amendment , there are some historically rooted exceptions. First, the government may generally restrict the time, place, or manner of speech, if the restrictions are unrelated to what the speech says and leave people with enough alternative ways of expressing their views. Thus, for instance, the government may restrict the use of loudspeakers in residential areas at night, limit all demonstrations that block traffic, or ban all picketing of people’s homes.

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Second, a few narrow categories of speech are not protected from government restrictions. The main such categories are incitement, defamation , fraud , obscenity , child pornography , fighting words, and threats. As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building). But speech urging action at some unspecified future time may not be forbidden.

Defamatory lies (which are called “libel” if written and “slander” if spoken), lying under oath, and fraud may also be punished. In some instances, even negligent factual errors may lead to lawsuits. Such exceptions, however, extend only to factual falsehoods; expression of opinion may not be punished even if the opinion is broadly seen as morally wrong.

Certain types of hard-core pornography, labeled obscenity by the law, may also be punished, as the Supreme Court held in Miller v. California (1973). Exactly what constitutes obscenity is not clear, but since the 1980s the definition has been quite narrow. Also, obscenities in the sense of merely vulgar words may not be punished ( Cohen v. California [1971]).

Material depicting actual children engaging in sex, or being naked in a sexually suggestive context , is called child pornography and may be punished. Sexually themed material that uses adults who look like children or features hand-drawn or computer-generated pictures of fictional children does not fall within this exception, though some such material might still be punishable as obscenity.

Fighting words—defined as insults of the kind likely to provoke a physical fight—may also be punished, though general commentary on political, religious, or social matters may not be punished, even if some people are so upset by it that they want to attack the speaker. Personalized threats of illegal conduct, such as death threats, may also be punished.

No exception exists for so-called hate speech ( see also hate crime ). Racist threats are unprotected by the First Amendment alongside other threats, and personally addressed racist insults might be punishable alongside other fighting words. But such speech may not be specially punished because it is racist, sexist, antigay, or hostile to some religion.

The preceding sections have dealt with laws that apply even to speakers who are using their own resources on their own property. But the government has considerable—though not unlimited—power to control speech that uses government property.

Government employees, for example, may be fired for saying things that interfere with the employer’s efficiency . Elementary, junior high, and high school students may be disciplined for saying things that risk substantially disrupting the educational process or for using vulgarities at school. If the government gives people money to express the government’s views, it may demand that the money not be used to express things the government does not want to support. Speech on government land or in government buildings usually may be limited, if the government does not discriminate on the basis of the viewpoint of the speech. Additionally, speech by prisoners and by members of the military may be broadly restricted.

Speech on government-owned sidewalks and in parks (often labeled “traditional public forums”) is as protected against government suppression as is speech on the speaker’s own property. The same is true for speech by public-university students, at least when the speech is not part of class discussions or class assignments.

The government has some extra authority to restrict speech broadcast over radio and television. Because the government is considered the owner of the airwaves, it may dictate who broadcasts over the airwaves and, to some extent, what those broadcasters can say. This is why the Supreme Court, in FCC v. Pacifica Foundation (1978), upheld a ban on broadcasting vulgar words, though such words are generally constitutionally protected outside the airwaves. It is also why the Supreme Court, in Red Lion Broadcasting Co. v. FCC (1969), upheld the “ fairness doctrine ,” a regulation of the Federal Communications Commission (FCC) that at the time required broadcasters to give time to people who wanted to present contrary viewpoints. But that extra government authority extended only to radio and television broadcasting and not to other media, including newspapers , cable television , and the Internet . (The FCC abolished the fairness doctrine in 1987.)

What is the role of free speech in a democratic society?

Book co-edited by prof. geoffrey stone examines evolution, future of first amendment.

Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in  Abrams v. United States , one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.

That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America. 

The Free Speech Century  (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.

“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”

Stone, JD’71, has spent much of his career examining free speech— a topic he first became passionate about as a University of Law School student.

The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,  New York Times Co. v. United States.  The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the  New York Times  and  Washington Post  to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.

But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”

—Adapted from an article that first appeared on the University of Chicago Law School website.

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27 Freedom of Speech Examples

Chris Drew (PhD)

Dr. Chris Drew is the founder of the Helpful Professor. He holds a PhD in education and has published over 20 articles in scholarly journals. He is the former editor of the Journal of Learning Development in Higher Education. [Image Descriptor: Photo of Chris]

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Freedom of Speech refers to the right of any citizen to express their thoughts, ideas, and opinions without fear of government restraint or censorship (Legal Information Institute, 2020).

The notion of free speech extends beyond verbal communication. It can also defend our rights to use offensive sign language and body language, engage in symbolic and artistic expressions (e.g., flag burning), and even wear clothing that others may find offensive or revealing. Take, for example, the case of Cohen v. California, where the Supreme Court protected an individual’s right to wear a jacket with an expletive as a form of political protest.

Another practical example can be seen in newspapers or media outlets, who are often protected from government persecution by free speech laws. In liberal democracies like the USA and France, the free press are permitted to criticize the government openly.

Free speech helps defend our robust democracies, and makes our political systems more free, fair, and open than nations like Vietnam, China, Hungary, Turkey, and Cambodia whose governments largely control the media and therefore have a stronger monopoly over state power (Lidsky & Cotter, 2016).

Freedom of Speech Examples

• Peaceful protest signs: Peaceful protest signs are protected under free speech laws in most liberal democracies. They represent the direct expression of an individual’s or group’s thoughts and concerns on a political matter (Chenoweth & Stephan, 2011). These signs serve as a non-violent way to demand action, raise awareness, or critique governmental or societal issues. Regardless of the message’s popularity, the freedom to publicly display such signs is protected under freedom of speech, as long, however, as they do not incite violence or unlawful actions.
• Expressing religious beliefs: Freedom of speech in most liberal-democratic nations covers the public expression of religious beliefs (Roth, 2015). This includes wearing religious symbols, discussing religious topics, or participating in religious rituals in public. Importantly, this freedom is granted equally to all religions and even no-religion atheists and agnostics, who have the freedom to promote their non-beliefs. Such a law allows for a diverse array of religious expressions in public forums such as online and in universities.
• Wearing symbolic clothing: The Supreme Court of the USA has upheld the right of individuals to wear expressive clothing as a form of symbolic speech (Cohen v. California, 1971). This can include everything from protest t-shirts to flag pins and allows individuals to wear their opinions literally on their sleeves.
• Artistic expressions of dissent: Artistic expressions, including painting, music, and theater, are vehicles to express dissenting ideas or critique societal norms (Reitman, 2014). These expressions allow for creative commentary on the prevailing cultural, political, or social climates , contributing to the diversity of discourse within society. However, this would not be protected if the art were painted onto other people’s or public property, such as in the case of graffiti art.
• Criticizing government actions: In most liberal democratic nations, freedom of speech also includes the right to voice dissent publicly and criticize government policies or actions (Stroud, 2011). This encourages transparency and accountability, empowering citizens to serve as a check on governmental power.
• Satirical commentary on society: Protected under freedom of speech in many nations, satirical commentary allows for a critique of individuals, groups, and societal norms through humor and irony (Stankiewicz, 2017). Satire plays a vital role in maintaining a healthy society by promoting dialogue about difficult issues in a manner that engages audiences and provokes thought. For example, Charlie Hebdo’s incendiary satirical pictures of Islamic figures was offensive, but allowed, under France’s robust free speech laws.
• Advocating for social change : One of the most potent uses of free speech is the ability to advocate for social change (Meyerson, 2010). This can occur in many ways, such as public speeches, organized protests, or social media campaigns, allowing individuals and groups to bring attention to societal issues and push for change.
• Publicly debating controversial topics: Freedom of speech upholds the right to participate in public debate on controversial topics (Fish, 2016). Such debates often expose varying viewpoints and challenge assumptions , (even if you’re ill-informed!).
• Sharing scientific theories: Academic freedom, a facet of freedom of speech, allows researchers to share scientific theories or findings even if they are controversial (Karran & Mallinson, 2017), without facing fear of being fired. This is a central concept in the tenure system in the USA. This openness promotes progress and innovation by enabling knowledge exchange and peer scrutiny.
• Blogging personal political views: Blogging platforms provide a space for individuals to express their political opinions freely and discuss matters of public concern (Sunstein, 2017). This democratizes access to political discourse and helps cultivate a more informed public, but may also unfortunately spread misinformation – which is a key downside of free speech.
• Writing a critical book review: Freedom of speech permits individuals to write and publish critical reviews of books (or other forms of media), helping to facilitate discourse and contribute to the literary or artistic community (D’Haen, 2012). Such reviews, positive or negative, aid in the critical reception and evaluation of the work, influencing its public reception, but, generally, if not slanderous, cannot be censored.
• Political campaign speeches: When politicians deliver speeches during their campaign, they practice their freedom of speech (Kenski & Stroud, 2016). Their speeches allow voters to understand their stances on various issues, crucial for informed voting. They’re often critical of the government, but yet are allowed, in order to sustain a robust democratic society.
• Publishing an investigative article: Investigative journalism, protected by freedom of speech, involves in-depth reporting to uncover hidden issues in society or government (Tumber & Waisbord, 2019). It serves as a watchdog, promoting transparency , and accountability. This allows papers like the New York Times and Wall Street Journal to release cutting-edge investigative journalistic pieces.
• Whistleblowing on corporate wrongdoing: Freedom of speech protects whistleblowers who expose unethical practices within corporations, serving as a fundamental check on corruption and wrongdoing (Kohn, 2010). This form of expression is critical for maintaining trust and integrity within industries.
• The right to offend: Freedom of speech includes the right to offend, meaning individuals are allowed to voice opinions or ideas, however, potentially offensive they may be to some (Strossen, 2018). This freedom allows for a wide range of expressions, fostering diverse and dynamic dialogue within society.
• The right to silence: Often conceptualized as “the right to remain silent,” this right protects individuals from self-incrimination and stands as an integral aspect of free speech (Franks, 2014). This guarantees individuals’ liberty to choose when and how they express themselves. In the USA, this is protected under the 5th amendment.
• Social media activism: Activism through social media platforms falls under the umbrella of freedom of speech (Loader & Mercea, 2011). This allows individuals to raise awareness, mobilize supporters, and campaign for change at unprecedented speeds and scales.
• Public speaking at a rally: Individuals addressing a crowd at a public rally exercise their freedom of speech by expressing their beliefs and advocating for causes they support (Tufekci, 2017). Public speeches can rally support, influence opinions, and draw attention to essential issues.

See Also: 40 Types of Freedom

Free Speech and the US Constitution (First Amendment)

While encased in the First Amendment of the United States Constitution, freedom of speech was originally designed to maintain civil liberties an open, democratic society whereby all individuals could express their comments and opinions freely (Stroud, 2011).

The framers believed that unchecked and unrestricted discussion would lead to the truth, and bad ideas would be debunked by the good ideas. This idea is often described in the metaphor ‘sunshine is the best disinfectant’.

The USA has one of the most libertarian readings of free speech, and while other liberal democracies protect speech, none are quite as robust in their protections than the USA.

Interestingly, freedom of speech also covers the right to be silent. For instance, the Fifth Amendment of the United States constitution protects an individual’s right not to make self-incriminating statements under interrogation, often conceptualized as “the right to remain silent” (Franks, 2014).

The Constitutional Limits of Free Speech

Freedom of speech does not mean absolute freedom . Contrary to some misconceptions, this right is not without its boundaries (Smith & Kavanagh, 2015).

There are indeed restrictions that one must adhere to, such as libel, slander, obscenity, sedition, and incitement, to name a few.

For instance, hate speech that incites violence or harm towards a specific group is typically not protected by the right to free speech in the USA (Brimelow v. Alexandria Women’s Health Clinic, 2012).

Famous Freedom of Speech Cases in the United States

Tinker v. des moines (1969): student vietnam war protests.

This landmark case marked a significant decision protecting students’ rights to free speech (Abernathy, 2007). John Tinker and his fellow anti-war agitators were suspended from their Des Moines school for wearing black armbands to protest the Vietnam War. Upon appeal, the Supreme Court of the United States argued that their actions we free speech. Being non-disruptive of minimally disruptive, are protected. The court stated, “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” establishing a precedent for future freedom of speech cases in education settings, such as the freedom to wear political slogans on your clothing at public schools.

New York Times Co. v. United States (1971): Defending Press Freedom

In this case, better known as the “ Pentagon Papers Case ,” the government tried to prevent the New York Times from publishing classified documents containing information that the US government was trying to hide because it demonstrated unfavorable information about the USA’s role in the Vietnam War (Rudenstine, 2014). The Supreme Court ruled in favor of the New York Times. It affirmed the principle of no prior restraint, which means that the government cannot stop the publication of a news story pro-actively, except in extremely rare circumstances. This case reaffirmed the robustness of press freedom in the USA.

Texas v. Johnson (1989): The Right to Flag Burning

This case involved Gregory Lee Johnson who burned an American flag as a form of political protest. This led to his arrest under a now-defunct Texas law banning “flag desecration” (Goldstein, 2016). The Supreme Court overturned his conviction stating that Johnson’s act was symbolic speech and, therefore, protected by the First Amendment. Here, we can see that ‘speech’ isn’t just about speaking but also symbolism . This decision significantly reinforced the idea of protection for symbolic speech under the freedom of speech.

Citizens United v. Federal Election Commission (2010): Money is Speech

This case addressed the issue of campaign financing, where the court found that giving money to a political candidate was seen as ‘political speech’ and therefore protected by the first amendment (Magarian, 2010). Citizens United, a non-profit organization, challenged a regulation barring corporations and unions from funding political campaign ads. The Supreme Court ruled in favor of Citizens United . This, in turn, allowed unlimited corporate spending in elections, asserting that such “political speech” was protected under the First Amendment. Detractors – including myself – think this case essentially positioned corporations as people, which is ridiculous, and led to the devastating hyper-politicization of elections we see to this day.

Snyder v. Phelps (2011): The Right to Offend

This case involved the Westboro Baptist Church’s right to picket military funerals with fundamentalist anti-military sentiments, resulting in an emotional distress lawsuit from the father of a fallen marine (Carpenter, 2011). The Supreme Court ruled in favor of Westboro Baptist Church . The justices argued that the expression represented matters of public concern, thus protected under the First Amendment, no matter how offensive this behavior truly was.

Schenck v. United States (1919): The Limitations of Free Speech

Charles Schenck, Secretary of the Socialist Party, was arrested for distributing leaflets opposing the draft during World War I (Lewis, 2008). The Supreme Court upheld his conviction under the Espionage Act, ruling that Schenck’s actions posed a “clear and present danger” to national security. This case is important as it established the “clear and present danger” standard for limiting freedom of speech. Although, in my opinion, this ruling was counter to many other Supreme Court findings that held very absolutist perspectives toward free speech, and demonstrated the constant right-wing leanings of US supreme courts over the years.

While “freedom of speech” can often seem like an expansive term, understanding its roots in the democratic principles of open discussion and societal checks and balances can offer some enlightening contexts. However, as discussed above, there are indeed certain conditions and restrictions and, like any freedom, it necessitates responsible handling. Interestingly, strong free speech laws in the USA have led to many perverse outcomes which demonstrates that they may be too lenient; while in my home country of Australia, free speech is often protected, but the laws are much more strict. Finding the right balance is extremely difficult.

Abernathy, M. (2007). First Amendment Law Handbook . Thomson/West.

Brimelow v. Alexandria Women’s Health Clinic, 132 S. Ct. 2681 (2012).

Carpenter, D. H. (2011). Westboro Church’s Funeral Picketing is Free Speech . Supreme Court Debates.

Franks, D. D. (2014). The Fifth Amendment: Double Jeopardy, Due Process , and the Nature of the Interrogation Process. Routledge.

Goldstein, R. (2016). Flag Burning and Free Speech: The Case of Texas v. Johnson. University Press Of Kansas.

Legal Information Institute. (2020). Freedom of Speech. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/freedom_of_speech

Lewis, A. (2008). Freedom for the Thought That We Hate: A Biography of the First Amendment. Basic Books.

Lidsky, L. B. & Cotter, R. T. (2016 ). Freedom of the Press: A Reference Guide to the United States Constitution . Greenwood.

Magarian, G. P. (2010). The Democracy of Direct Speech. Wm. & Mary Law Review, 97.

Rudenstine, D. (2014). The Day the Presses Stopped: A History of the Pentagon Papers Case. University of California Press.

Smith, K. E., & Kavanagh, D. (2015). Freedom of Speech: The History of an Idea . Penn State University Press.

Stroud, N. J. (2011). Niche News: The Politics of News Choice . Oxford University Press.

• Chris Drew (PhD) https://helpfulprofessor.com/author/chris-drew-phd-2/ 25 Number Games for Kids (Free and Easy)
• Chris Drew (PhD) https://helpfulprofessor.com/author/chris-drew-phd-2/ 25 Word Games for Kids (Free and Easy)
• Chris Drew (PhD) https://helpfulprofessor.com/author/chris-drew-phd-2/ 25 Outdoor Games for Kids
• Chris Drew (PhD) https://helpfulprofessor.com/author/chris-drew-phd-2/ 50 Incentives to Give to Students

2 thoughts on “27 Freedom of Speech Examples”

Hi Professor Drew: I am so-o-o-o enjoying your site. I am an ESL teacher, and I use it extensively to introduce the students to American culture. I really like the deep dives into specific topics, like The American Dream, and Freedom of Speech. A fantastic resource! Thank you!

Hi Jane, thanks so much for reaching out and I’m so glad my website is a useful resource for you. All the best with your teaching!

Regards, Chris.

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Free speech doesn’t mean you can say whatever you want, wherever. Here’s how to explain this to kids

Researcher for the University of Queensland Critical Thinking Project, The University of Queensland

Senior Lecturer in Philosophy and Education; Curriculum Director, UQ Critical Thinking Project, The University of Queensland

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Peter Ellerton is a Fellow of the Rationalist Society of Australia.

Luke Zaphir does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Melbourne has seen days of anti-lockdown and anti-vaccination protests with hundreds of arrests made. Many protesters hold right-wing and extremist views.

Police say people have been arrested for breaching the chief health officer’s directions, as well as drug-related offences and outstanding warrants. But protesters say the crackdown shows their views are being silenced and the legitimate right to protest — a democratic right that links to freedom of speech — is being squelched.

These protests raise important questions about the nature of freedom of speech. Do the actions of the police represent an attempt to limit what people can say, think or believe?

Such concepts can be difficult enough for adults to deal with. But they can be far more confusing for children.

What do kids need to know about free speech?

The First Amendment to the United States Constitution proclaims freedom of speech as a right for all citizens. The Australian constitution does not have such an explicit statement regarding free speech. But Australia is a party to seven core international human rights treaties and the right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights .

In Australia, freedom of speech is taught explicitly as a concept as part of the year 8 civics and citizenship curriculum . Depending on the school and state, this amounts to about four lessons exploring democratic freedoms that allow for participation in Australian society.

But in practical terms, if a child gets sick at the wrong time and needs to miss school they’ll never learn about the most fundamental aspects of their own citizenship at school.

Read more: Freedom of speech: a history from the forbidden fruit to Facebook

Children need to understand that when we talk about freedom of speech we’re actually talking about (at least) two things: freedom of opinion or belief, and freedom of expression.

In Australia, freedom of opinion gives us the right to hold a belief without interference, exception or restriction . We have the right to believe anything we want. We can believe the earth is flat or that alien cabals rule the world.

Freedom of expression is more complicated though. We have the right to say what we want — to give our opinions, advertise, display art and protest — but within limits. Most people are aware of these limits: we aren’t allowed to say fighting words, slander another person’s name, cause a panic, or incite violence, for example.

A useful analogy, understandable by most children, is that we have the right to drive freely on roads provided we observe limits on speed, places we can park, how we negotiate the roads with others and the amount of alcohol we have consumed.

Simplistically, limits on what we say, where we say it and how we act are, therefore, like limits on the road, designed to optimise both our rights and public harmony.

In the case of the protesters, they are claiming and acting as if they have a right to not conform to restrictions put in place for the sake of public health and safety. In other words, they are not acknowledging any limits.

There are consequences to this, just as there are consequences to breaking road rules. Indeed some protesters have already tested positive for COVID , increasing the possibility of infection within the community.

But what about when the free speech is done in a privately owned sphere that is available to the public – such as on a social media platform?

What about free speech in privately owned public spaces?

There have been many instances where a news organisation or person has been banned from social media platforms — the most famous example being that of ex US President Donald Trump .

In this instance, it is not a government intervention that has blocked a person from expressing their opinions but a private entity with its own rules and regulations.

Read more: No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others

Let’s go back to our road example. If someone has a private road leading to a nice bluff overlooking the sea, they might allow anyone access to the bluff provided they follow conditions such as not speeding, sticking to the road and not playing loud music. If someone decided not to abide by those conditions, it is justifiable for the owner to ban them.

Private businesses also allow people into their stores so long as they accept certain conditions governing their behaviour. Most people think this is reasonable.

But what conditions are acceptable to place on public access to private property? What if we did not allow people of a certain racial background into our coffee shop? Or certain genders? Almost no one would think that was reasonable.

The conversation with children, therefore, needs to be about whether limitations are fair and reasonable.

Private companies like Facebook, Twitter and YouTube are allowed to set conditions for those who use their platforms. In fact, in the case of social media, you have to explicitly agree to abide by those terms to be allowed to use it.

Freedom of speech means allowing others the same rights

A crucial characteristics of participatory democracy is that everyone gets a say on issues of public importance, or at least every view gets a champion.

And if you’re free to express an idea, people are free to respond to you, and perhaps dismiss you, as they wish. Your right to be heard is not a right to be taken seriously.

Kids need to be involved

A final important point is that it’s not enough to tell students there are rules — they need to be active participants in constructing those rules.

A classic philosophical thought experiment is the paradox of tolerance, formulated neatly by the philosopher Karl Popper :

in order to maintain a tolerant society, the society must be intolerant of intolerance.

In democratic societies, we need to be tolerant of other beliefs, lifestyles, opinions and expression, but how do we match this with the idea of limits on free speech?

We can use the following questions to start discussions with our students or children:

are there any behaviours we should find intolerable or unacceptable (such as violence, racism and homophobia)?

why are these behaviours intolerable — will they cause harm, or do we simply disagree with them?

how do we know harm occurs?

These conversations about rights and responsibilities are an essential part of a democratic education.

It is possible to have unlimited freedom of expression — just not in a democracy. If someone can say what they want without any regard or consequence, then they’ve merely reached the top of a dictatorship.

Read more: With rights come responsibilities: how coronavirus is a pandemic of hypocrisy

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• Human rights
• Lockdown protests
• Educational philosophy

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Great Free Speech Moments of the 20th Century

Home / Great Free Speech Moments of the 20th Century

Although all five freedoms found in the First Amendment are equally important, freedom of speech remains a cornerstone of any democratic and free society. As activist Deeyah Khan said, “Freedom of speech is a human right and the foundation upon which democracy is built. Any restriction of freedom of speech is a restriction upon democracy.”

According to a recent 2021 survey conducted by the Freedom Forum, freedom of speech is considered to be the “most vital” freedom found in the First Amendment with 59% of respondents citing it as such.

In honor of Free Speech Week 2021 , the First Amendment Museum has compiled a list of ten great free speech moments from 20th-century American history.

Note: The free speech moments chronologically listed below were selected by the staff at the First Amendment Museum, but there are many notable free speech moments in our history. What would you consider a great free speech moment of the 20th century? Tell us your picks!

Silent Sentinels Protest (1917)

Sometimes, the most powerful speech can involve no words at all. One of the most iconic protests of the Women’s Suffrage Movement was conducted by a group called the “Silent Sentinels” organized by Alice Paul, a Quaker women’s rights activist with a commitment to non-violence and women’s suffrage. The Silent Sentinels protested in front of the White House during Woodrow Wilson’s presidency, from January of 1917 to June of 1919. The protesters wore sashes, held banners, and carried flags with messaging on them in support of women’s right to vote.

The Silent Sentinels used silence instead of loud demonstrations as a form of protest, which was a new strategy within the national suffrage movement. Although the protesters were silent, their presence and messaging amplified the inequality that existed at home while the United States was fighting World War One abroad to make “the world safe for democracy.”

Throughout their two-and-a-half-year-long vigil, one of the longest continuous protests in American history, many of the nearly 2,000 women who picketed suffered from police brutality. In November of 1917, many of the Silent Sentinels were arrested and imprisoned, and further suffered cruelties that included being force-fed, beaten, choked, and abused until they were released weeks later. Over the course of the entire Silent Sentinel protest, nearly 500 women were arrested and 168 served jail time for their steadfast belief in the importance of women’s rights. These protests became one of the most effective in American history and helped spur the passage of the Nineteenth Amendment which granted women the Constitutional right to vote.

Abrams v. United States (1919)

The entry of the United States into World War One ushered in an unprecedented era of paranoia in the country. German spies, communist agents, and other “subversive elements” were thought to be pervasive. In 1917, Congress and President Woodrow Wilson passed the Espionage Act which was intended to prohibit interference with military operations or recruitment, to further restrict insubordination in the military, and to prevent the support of enemies of the United States during wartime.

Outspoken members of the Socialist Party, Charles Schenck, and Elizabeth Baer were arrested under the newly imposed restrictions on speech provided by the Espionage Act. They were charged with the distribution of flyers calling on men to “resist the draft,” which they viewed as a form of involuntary servitude. Schenck v. United States went all the way to the Supreme Court. Led by Chief Justice Oliver Wendell Holmes Jr., the Court upheld the conviction of Schenck and Baer, and therefore the legality of the Espionage Act itself. The court ruled that Schenck and Baer’s actions represented a “clear and present danger to the enlistment and recruiting service of the U.S. Armed Forces during a state of war.” This case, decided in March of 1919, gave the government a broad license to suppress free speech.

Later that year, in August of 1919, Hyman Rosansky was similarly arrested for throwing fliers off a building in New York City that criticized the US intervention in the Russian Revolution. He and his collaborators were charged under the Espionage Act, and the case, Abrams v. United States also reached the Supreme Court which upheld Rosansky’s conviction— with one notable exception . Unlike in Schenck v. US , this time, Chief Justice Oliver Wendell Holmes Jr. dissented, and commented, “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” In this famous dissent, written only months after Schenck v. US , Holmes eloquently laid the groundwork for the “marketplace of ideas” doctrine that has guided much of American jurisprudence on free speech since. 

Scopes Monkey Trial (1925)

Today, the scientific theory of evolution is a common component of most public high school science curricula, but that was not always the case. In March of 1925 in Tennessee, the Butler Act made it a crime to teach the scientific theory of evolution in public schools. In response, the American Civil Liberties Union asked John Scopes, a high school science teacher, to purposefully violate the Butler Act by admitting to teaching evolution in order to challenge the law in court. Scopes, who had previously substituted for the regular high school biology teacher in the small town of Dayton, agreed and was charged with violating the Butler Act in May of 1925 for teaching evolution from a 1914 textbook.

Both sides lawyered up with star attorneys, and publicity around the trial swelled the public’s interest in the topic nationwide. For the defense, Scopes was represented by Clarence Darrow, a folksy celebrity lawyer. The prosecution was represented by William Jennings Bryan, a prominent Democratic politician who had previously run for president three times. What followed was one of the most memorable court cases in United States history. The lawyers sparred back and forth, culminating in Darrow calling upon Bryan to sit on the witness stand for the defense. Under questioning, Darrow, himself an agnostic, poked at Bryan’s personal Christian beliefs, embarrassing the latter. 

Although Bryan’s prosecution performance during the trial was considered lackluster, while Darrow’s was exulted, the jury decided to convict Scopes anyway. However, the highly-publicized trial humiliated the fundamentalists behind the Butler Act in the court of public opinion. By 1927, forty-one bills or resolutions similar to the Butler Act had been introduced into state legislatures. Due partly to the efforts of Scopes, the ACLU, and Clarence Darrow, only two of those bills passed. 

Near v. Minnesota (1931)

The catch-22 regarding freedom of speech in the United States is that it protects malicious hateful speech just as much as it protects positive or acceptable speech. Near v. Minnesota is an example of this dichotomy. In 1927, Jay M. Near, who was described as “anti-Catholic, anti-Semitic, anti-black, and anti-labor”, published The Saturday Press in Minneapolis, Minnesota. The paper falsely and derogatorily asserted that a Jewish cabal was running the city. Local politician Floyd B. Olson sued the paper under Minnesota’s Public Nuisance Law of 1925 which penalized those who made a “public nuisance” by publishing, selling, or distributing anything considered “malicious, scandalous, and defamatory.”

The case reached the Supreme Court which ruled in Near’s favor, holding that the Public Nuisance Law was unconstitutional since it violated both the Fourteenth and First Amendments. The case violated the First Amendment because it placed an unconstitutional “prior restraint” on the free press. Prior restraint is any law that chills, censors, or silences speech before it is produced. The Public Nuisance Law also violated the Fourteenth Amendment because the Fourteenth Amendment made the First Amendment applicable to state governments as well as the federal. Before the passage of the Fourteenth Amendment in 1868, the First Amendment only applied to the federal government. 

Near v. Minnesota was undoubtedly a win for freedom of the press advocates in the United States and has been called the “first great press case” by public intellectual Anthony Lewis. However, the Supreme Court’s decision to allow the paper to spew what we would consider “hate speech” today has muddled the reputation of this landmark decision.

Montgomery Bus Boycotts (1955)

Rosa Parks is now widely known as one of the great icons of the Modern Civil Rights Movement, but in 1955 she was just a young activist standing up against systemic racism. One of the most famous protests in United States history was the Montgomery Bus Boycott which began in December of 1955 and lasted a whole year until December of 1956. Considered a foundational moment in the history of the American Civil Rights Movement of the mid-twentieth century, the boycott began after Parks, a black woman, was arrested for refusing to give up her bus seat to a white person in segregated Montgomery, Alabama.

Numerous events led up to the Montgomery Bus Boycotts. In 1946, the Supreme Court ruled that a Virginia state law enforcing segregation on interstate buses was unconstitutional after hearing a suit brought by the National Association for the Advancement of Colored People (NAACP). Then, in 1953, activists in Baton Rouge, Louisiana boycotted the busing system in that city over its racist practices. Two years later, a 15-year-old member of Montgomery’s NAACP Youth Council named Claudette Colvin refused to give up her seat on a bus to a white man. This series of events inspired the NAACP to plant Rosa Parks in a “white’s only” section of a Montgomery public bus in order to spark the boycott. When Parks was arrested for her actions, the boycott began.

Because over 70% of Montgomery’s bus patrons were black, the boycott resulted in drastically reducing the profitability of the busing system. The organization leading the boycott was the Montgomery Improvement Association (MIA) which had just elected as their new president a charismatic preacher named Martin Luther King, Jr. Under his leadership, the boycott continued with astonishing success. Montgomery City Lines lost between 30,000 and 40,000 bus fares each day during the boycott. The boycott garnered national attention and pressured the Supreme Court to declare Montgomery’s policy of segregated busing unconstitutional, ending the boycott. The Montgomery Bus Boycott was an unmitigated success that helped usher in the modern era of Civil Rights, and is a textbook example of using First Amendment rights to shift thinking and policy for the greater good.

Greensboro Sit-Ins (1960)

On February 1st, 1960, four freshmen at North Carolina Agricultural and Technical State University sat down at the lunch counter inside the F. W. Woolworth Company store in Greensboro, North Carolina. The four had previously been meeting regularly to discuss ways they could personally challenge the racist Jim Crow laws of their community. After sitting down, the men, Ezell Blair Jr., David Richmond, Franklin McCain, and Joseph McNeil, were refused service due to the color of their skin when they each asked for a cup of coffee. After being asked to leave repeatedly, the four refused and stayed until the store closed that night. Then began the Greensboro Sit-Ins. The four returned day after day for almost six months, with more and more publicity, hatred, and supporters following them, until the Greensboro F.W. Woolworth Company agreed to end its policy of racial segregation in July. The last F.W. Woolworth store was desegregated in 1965.

The Greensboro Sit-Ins spawned the subsequent “sit-in movement” in which the events of Greensboro would be repeated across the South until full desegregation of the stores was achieved by the mid-1960s. Over 70,000 people participated in the sit-in movement and many suffered abuse, insult, and disrespect at the hands of angry white mobs and authorities. The Greensboro Sit-Ins also helped catalyze the creation of the Student Nonviolent Coordinating Committee (SNCC) which played an important role in the growing Civil Rights Movement. Today, the International Civil Rights Center & Museum is located in the former F.W. Woolworth store where the Greensboro Sit-Ins occurred.

March on Washington (1963)

The March on Washington for Jobs and Freedom remains one of the most famous and important events in all of American history. Perhaps no other event better exemplifies the soul of the First Amendment than the March on Washington. The march was organized by A. Philip Randolph and Bayard Rustin, prominent civil rights leaders who built a diverse coalition of activists for the March under the banner of “jobs and freedom.” It took nearly two years to plan and attracted civil rights groups, labor unions, and religious organizations. The organizers of the March ruled out civil disobedience and insisted the gathering be a peaceful and legal event with cooperation from the Washington D.C. police. 

On August 28th, 1963 around 250,000 activists arrived in Washington D.C. to make their voices heard. The March began at the Washington Monument with female participants marching down Independence Avenue, while male participants marched on Pennsylvania Avenue. Both converged and ended at the Lincoln Memorial. There, representatives from each of the March on Washington’s sponsoring organizations addressed the crowd from a podium on the memorial’s steps. The speeches culminated in the Rev. Dr. Martin Luther King, Jr. issuing his famous “I Have a Dream Speech.”

The March is credited with helping to pass the Civil Rights Act of 1964, a landmark bill in Civil Rights history. The media coverage the March attracted gave many Civil Rights groups and leaders national exposure, carrying the organizers’ speeches and messages to a wide audience around the country and the world. Voice of America even translated the speeches and rebroadcast them in 36 languages. The March served as a template for the later Selma to Montgomery marches in 1965. Michael Thelwell, an activist and participant of the March, said, “so it happened that Negro students from the South, some of whom still had unhealed bruises from the electric cattle prods which Southern police used to break up demonstrations, were recorded for the screens of the world portraying ‘American Democracy at Work.’”

Berkeley Free Speech Movement (1964)

During the 1950s, heightened tensions with the Soviet Union ushered in a wave of hysteria regarding fears over the spread of Communism. In response, universities in California enacted numerous regulations limiting students’ political activities. By the mid-1960s, however, encouraged by the Civil Rights Movement and the burgeoning anti-war movement, students at the University of California, Berkeley, began testing the limits of their collegiate free speech. Students began meeting off-campus to hold political demonstrations and rallies, often raucous affairs which sometimes resulted in student arrests. The press took a special interest in the students’ activities and portrayed UC Berkeley as a haven for left-wing radicals. In response, the school’s administration vowed to enforce prohibitions on student speech and political demonstration.

In 1964, five hundred students marched on Berkeley’s administration building to protest the university’s anti-speech rules. The students called for an abolition of all restrictions on free-speech rights throughout the University of California system. In October of that year, former graduate student Jack Weinberg refused to show his identification to the campus police and was arrested. Thousands of students gathered in response and surrounded the police car Weinberg was detained in for the following 32 hours, all while Weinberg was inside it. The car was used as a speaker’s podium until the charges against Weinberg were dropped. Then, on December 2, thousands of students occupied a campus building to force the school administration to relinquish restrictions on political speech and action on campus. After these events, Berkeley’s officials began to relent. By January of 1965, the new acting chancellor, Martin Meyerson, established provisional rules that allowed political activity on the Berkeley campus. The win for free speech was seen by many as a watershed moment for white youth activism during the 1960s. The Berkeley Free Speech Movement not only essentially dismantled free speech restrictions on college campuses in California, but also helped catalyze the anti-war movement amongst young people who could now use their voices safely and legally.

Brandenburg v. Ohio (1969)

During the summer of 1964, Ku Klux Klan member Clarence Brandenburg addressed a small gathering of fellow Klan members in a rural Ohio field. In Brandenburg’s speech, he issued vague threats against the federal government if it continued to “suppress the white, Caucasian race.” Portions of Brandenburg’s speech had been filmed and when authorities saw it they charged him with violating “Ohio’s criminal syndicalism statute,” a policy that made it a crime to “advocate … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

Initially convicted in court in Hamilton County, Ohio, Brandenburg was fined $1,000 and sentenced to one to ten years in prison. With the help of the American Civil Liberties Union, Brandenburg filed an appeal, claiming that his First Amendment free speech rights had been violated. The Ohio Supreme Court refused to hear his appeal so Brandenburg appealed to the US Supreme Court. In a landmark decision, the US Supreme Court sided with Brandenburg and said it was his First Amendment right to make his speech, ruling that  Ohio’s criminal syndicalism statute was unconstitutional.  SCOTUS articulated a new test, the “imminent lawless action” test (now known as the Brandenburg Test), to judge what was illegal seditious speech under the First Amendment. 

The imminent lawless action test stated that speech could be punished only if it met two criteria: “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Therefore, speech can only be restricted if it presents a threat that is both likely to actually happen and is to happen soon. As with many Supreme Court cases involving freedom of speech, Brandenburg v. Ohio is yet another clear demonstration that speech that is repellent is just as legal as speech that is popularly approved of under the First Amendment.

New York Times v. United States (1971)

In 1968, a secret government study on America’s involvement in Vietnam was completed. The project, which comprised 47 volumes containing more than 7,000 pages, documented how presidential administrations and politicians going back to the Truman era consistently escalated America’s involvement in Vietnam. It also detailed many government secrets regarding the U.S. military’s goals, objectives, strategies, and tactics in the then-still raging conflict. The work was classified and only 15 copies were made.

In early 1971 Daniel Ellsberg, who had worked on the project, secretly made copies of the documents and passed them to reporters for the New York Times . In June of 1971, the Times began to publish the documents which they called the “Pentagon Papers.” After the Pentagon Papers were published, President Richard Nixon’s administration, citing national security concerns, filed a restraining order to halt further publication of the Papers. When an Appeals Court upheld the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day resulting in the case, New York Times v. United States.

On June 30, 1971, the Supreme Court, in a 6-3 decision, rejected the restraining order and allowed the Times to continue with publication. Justice Hugo L. Black reasoned that “only a free and unrestrained press can effectively expose deception in government.” Justice Byron R. White wrote that “in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.” Nixon’s attempt to censor the New York Times’ freedom to publish the Pentagon Papers had been soundly defeated. The case resulted in a firestorm of outcry against government censorship and the circumstances of America’s involvement in Vietnam. The case remains one of the most important and iconic wins for freedom of speech and of the press in United States history.

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Time Machine: The Throughline History Quiz

What does freedom of speech actually mean test your knowledge in throughline’s history quiz.

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The First Amendment outlines five freedoms that Americans are guaranteed. Sounds simple, but you’d be surprised how complicated it can be. Find out more in Throughline’s history quiz.

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• Copy URL https://www.pbs.org/newshour/politics/experts-say-attacks-on-free-speech-are-rising-across-the-us

Experts say attacks on free speech are rising across the U.S.

BOISE, Idaho (AP) — In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. In Washington state, a lawmaker proposed a hotline so the government could track offensively biased statements, as well as hate crimes. In Florida, bloggers are fighting a bill that would force them to register with the state if they write posts criticizing public officials.

Meanwhile, bans on books and drag performances are growing increasingly common nationwide.

“We are seeing tremendous attacks on First Amendment freedoms across the country right now, at all levels of government. Censorship is proliferating, and it’s deeply troubling,” said Joe Cohn, legislative and policy director with the Foundation for Individual Rights and Expression.

“This year, we’re seeing a wave of bills targeting drag performances , where simply being gender nonconforming is enough to trigger the penalty. We’re also seeing a wave of bills regulating what can be in public or K-12 school libraries,” Cohn said. “On college campuses, we have been tracking data about attempts to get faculty members punished or even fired for speech or expression and the numbers are startling — it’s the highest rate that we’ve seen in our 20 years of existence.”

First Amendment rights had been stable in America for decades, said Ken Paulson, director of the  Free Speech Center  at Middle Tennessee State University, but in recent years many states have reverted to the anti-speech tactics employed by people like Sen. Joe McCarthy during the “Red Scare” of the early 1950s.

WATCH: Librarians in Louisiana at odds with conservative activists working to ban books

McCarthy and others tried to silence political opponents by accusing them of being communists or socialists, using fear and public accusations to suppress basic free speech rights. The term “McCarthyism” became synonymous with baseless attacks on free expression, and the U.S. Supreme Court has referred to the phenomena in several First Amendment-related rulings.

“We are seeing a concerted wave that we have not seen in decades,” said Paulson, highlighting states like Florida where Republican Gov. Ron DeSantis has pushed for legislation that would criminalize drag shows, limit what pronouns teachers can use for students, allow parents to determine what books can be in libraries and block some history classes entirely.

“It’s pretty mind-boggling that so many politicians are waving the flag of freedom while doing anything they possibly can to infringe on the free speech rights of Americans,” Paulson said.

Still, no one political group has a monopoly on censorship — aggression is increasing across the spectrum, Cohn said.

Washington state’s  bias hotline bill , which died in committee earlier this year, was sponsored by Democratic Sen. Javier Valdez and backed by several groups including the Anti-Defamation League, Urban League, Council on American-Islamic Relations and others. It aimed to help the state collect information about hate crimes and bias incidents and to provide support and compensation to victims at a time when  hate crime reports  are rising.

Opponents, including the Foundation for Individual Rights and Expression, said they feared it would chill protected speech because it encompasses both criminal behavior and offensively biased statements.

Hate speech can be damaging and repugnant, but is still generally protected by the First Amendment. The Department of Homeland Security and experts who study extremism have warned that hateful rhetoric can be seen as a call to action by extremists groups.

READ MORE: Arizona’s conservative superintendent sets up critical race theory hotline

Oregon created a similar bias hotline in 2019. It received nearly 1,700 calls in 2021, with nearly 60 percent of the reported incidents falling short of criminal standards, according to an annual report  from Oregon Attorney General Ellen Rosenblum’s office.

“People in power target their political adversaries, so who is being silenced really depends on where you are on the map and its individual context,” Cohn said.

Artist Katrina Majkut experienced that first-hand last week, when artworks she had shown in more than two dozen states over the past decade were unexpectedly censored at a small state school in Lewiston, Idaho.

Majkut uses embroidery to highlight and subvert historically narrow ideas of wifedom and motherhood. She was hired to curate an exhibit at Lewis-Clark State College focusing on health care issues like chronic illness, pregnancy and gun violence.

But March 2, a day before the show’s opening, Majkut and two other artists were told some of their work would be removed over administrator fears about running afoul of Idaho’s “No Public Funds for Abortion Act.”

The 2021 law bars state-funded entities from promoting abortion or taking other measures that could be seen as training or counseling someone in favor of abortion.

Majkut’s  cross-stitch depicting misoprostol and mifepristone tablets  — which can be used together to induce abortion early in pregnancy — was removed from the exhibit along with a wall plaque detailing Idaho’s abortion laws.

Four documentary video and audio works by artist Lydia Nobles that showed women talking about their own experiences with abortion were also removed. And part of artist Michelle Harney’s series of 1920s-era letters written to Planned Parenthood founder Margaret Sanger were stricken from the show.

“To be censored like that is shocking and surreal,” said Majkut, who designs her art to be educational rather than confrontational. “If the most even-keeled, bipartisan artwork around this topic is censored, then everything is going to be censored.”

READ MORE: Florida Republicans advance bills on gender identity, defamation

Logan Fowler, the spokesman for LCSC, said the school made the decision after consulting with attorneys about whether showing the art could violate the law. Republican Rep. Bruce Skaug, the author of the law, said Tuesday that it was not intended to “prevent open discussion” of abortion — only to prevent tax dollars from being used to promote it.

The art exhibit censorship comes just two months after another controversial decision by Skaug. As chairman of the Idaho House Judiciary and Rules Committee, Skaug announced in January that people under age 18 would not be allowed to testify in his committee. Another Republican committee chair soon followed suit.

Lawmakers have the ability to limit committee testimony, and often use those limits to keep the legislature’s work focused and timely. Still, the age-based speech restriction appeared to be a first for the state.

A group of teens took action, launching phone and email campaigns staging protests.

“There is a clear lack of foresight in politicians who seek to eliminate the voices of those who will one day elect and eventually supersede them,” a group of 32 high school student leaders wrote in a joint  opinion piece sent to news outlets  across the state. “We ask Idaho’s Republican leaders, what are you so afraid of?”

The lawmakers eventually modified their rules, allowing youth to testify as long as they have signed permission slips from a parent or guardian.

Skaug said the rule was necessary to ensure parents are aware if their kids are leaving school to testify at the Statehouse. He still intends to give priority to older residents when testimony time is limited, but said he’s not aware of any youth actually being denied the chance to testify so far this year.

For Cohn, the efforts in Idaho and elsewhere reflect the danger of trying to restrict the expression of people who hold opposing views.

“We have to be ever-vigilant if we want our culture of individual freedoms to prevail,” he said. “Bad ideas are better dealt with through debate and dialogue than government censorship.”

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College Board releases African American Studies course framework after DeSantis criticism

Nation Feb 01

• by Alex Russell
• July 30, 2024

The right to free speech is part of our American identity, but what if some forms of speech use this idea of freedom against us? Increasingly, certain forms of speech — hate speech and disinformation in particular — threaten our society and the many freedoms we might take for granted.

In a new paper published in the peer-reviewed journal Jurisprudence , UC Davis philosopher and legal scholar Mark Reiff gives new insight into the source of the right to free speech and the limits that this right contains. The paper explains how these limits show us that hate speech and disinformation are not protected by the right, but rather must be limited to ensure all of our fundamental freedoms. 

“We have to wake up to the conditions we are now in,” said Reiff, a research professor of philosophy in the College of Letters and Science. “Hate speech and disinformation are a real problem. People who claim you can say whatever you want in a liberal democracy are misunderstanding what freedom of speech is intended to guarantee in a free society.”

Untangling free speech and disinformation

Lies can have dangerous consequences. In 2016, a man with an assault rifle entered a Washington, D.C. pizzeria to search the building for the children an internet conspiracy theory convinced him were being held there. On a much bigger scale, campaigns of hate speech and disinformation provoked widespread violence and even genocide in Nazi Germany, Rwanda, and the former Yugoslavia. 

How could we live in a society where you can’t make a false claim about a dessert topping or floor polish, but you can falsely claim that the presidential election was stolen? There’s a difference between saying something that is reasonably mistaken but harmless and saying something that is wildly implausible and dangerous, like claiming that Hillary Clinton is running a pedophile ring out of the basement of a Washington, D.C. pizzeria. — Reiff

Reiff argues that the idea of protecting all forms of speech in a free society regardless of their content is actually illiberal. Hate speech and disinformation can be used to sow division and hatred and thereby undermine democracy. This has been the approach of Russia’s Internet Service Agency, which has been found to be actively spreading disinformation and division in the U.S. and other countries.

The claim is that this is done in the name of freedom, but when liberal democracies fall apart, their many freedoms are typically replaced by an authoritarian social structure that is radically different and much less free.

“There is a much wider range of permissible behavior in a liberal society than there is in an authoritarian society,” said Reiff. “Authoritarians think that to be free, people must behave in a very specific, uniform, and inflexible way. Only then can they realize their true potential, and if they cannot recognize this themselves, then it is the job of the government to force them to be free.”

Liberal society and the principles that make free speech possible

Some fundamental principles of liberalism.

• A commitment to toleration, neutrality, equality and freedom
• A commitment to the separation of religious and political authority
• The belief that all members of a political community should have an opportunity to participate in political decision-making under conditions of full information
• The view that the purpose of public discourse and debate is to persuade others of the rightness of one’s position by resorting to arguments that one’s opponents could not reasonably reject
• The view that the rule of law applies even to the rich and powerful
• That belief that empirical evidence rather than emotion and pre-moral ideology should have primacy in forming our reasons for action and belief
• The idea that punishment should be informed by the principle of proportionality
• The belief that the individual, not the community, is the fundamental social unit of moral responsibility and moral concern

When Reiff talks about liberal society or liberalism, it’s not in the sense of beliefs that are politically “liberal,” “progressive,” or even “leftist.” In a liberal society, people can have wildly different opinions, but they still embrace the same fundamental values. They just disagree about how best to apply those values to real-world situations.

“In a liberal society, people can disagree about what their fundamental principles require,” said Reiff. “They might want different public policies on abortion, immigration or government spending, but it’s important that the source of the disagreement is about how we should interpret the relevant fundamental principles, and not about what those fundamental principles are.”

In his paper, Reiff provides an extensive list of fundamental principles that define liberal societies. The full list is extensive and detailed. It includes tolerance, neutrality, equality and freedom. It includes the idea that everyone is entitled to meaningfully participate in political decision-making with full information. It includes the view that politics and religion should remain separate, and a commitment to applying the rule of law to everyone equally. 

“But liberalism doesn’t say you have to tolerate all plans of life,” said Reiff. “For example, a serial killer might say, ‘I was born this way, that’s just my plan of life, don’t oppress me by preventing me from pursuing it.’ But most people would say such a plan of life is not reasonable, so it does not have to be tolerated. The reasonableness of the plan of life always matters under liberalism.”

Free speech, hate speech and the test of what’s reasonable

Reiff argues that freedom of speech is not an independent, free-standing right, which we then try to tie to the fundamental principles of liberalism as an afterthought. Instead, we begin with these fundamental principles and then see what kind of right to free speech these fundamental principles would produce. 

“You cannot work the other way round,” said Reiff. “You have to start with the fundamental principles that everyone generally accepts in a liberal society, and then ask what would a right to free speech that is consistent with these principles look like? Otherwise, you will end up with an ad hoc right that is simply the product of someone’s pre-moral personal preferences, not one which is consistent with our general moral values.”

All these general principles are infused with the idea of reasonableness under liberalism. And while this idea may seem a little vague, it’s not. There are countless examples of what is reasonable in real-world situations in the law. These examples provide detailed guidelines that we can use to determine when speech moves from being reasonably and therefore tolerably mistaken, to being dangerously misleading and intolerably hateful. 

The legal system’s own rules show us how to do this. They strictly control what type of evidence can be used to inform a judge or jury’s decision. Rather than assuming truth will somehow emerge on its own from some sort of unregulated free-for-all, legal proceedings use a very careful and regulated approach. 

“In every other area of behavior in a liberal society reasonableness is the criteria of regulation, and we have centuries of jurisprudence explaining what’s reasonable and what’s not,” said Reiff. “We do this all the time in other areas. It’s crazy not to do this in the free speech area considering that hate speech and disinformation can do so much damage.”  

Primary Category

Trump attorney outlines possible Jan. 6 legal defenses, but some experts are skeptical

John Lauro raised several issues with Jack Smith's case.

Former President Donald Trump 's legal defense in his Jan. 6 indictment appears to be taking shape, according to recent comments by his attorney John Lauro .

Lauro, in a media blitz on Sunday, raised multiple points of contention with special counsel Jack Smith's case, whose central allegation is that Trump engaged in a "criminal scheme" to overturn the results of his 2020 election loss and remain in power.

Trump pleaded not guilty on Thursday to four felony counts, including conspiracy to defraud the United States, conspiracy against rights and obstruction of an official proceeding.

Here is a closer look at what Lauro is saying in Trump's defense and what some outside legal experts make of the claims.

Trump lacked corrupt intent, Lauro says

Lauro contended on ABC's "This Week" on Sunday that the Justice Department "will never be able to prove beyond a reasonable doubt that President Trump had corrupt or criminal intent."

According to Lauro, that's because Trump steadfastly believed the election was stolen -- a false view rejected by the courts and local elections officials -- and he relied on advice from his counsel on how to proceed.

Multiple experts have countered the issue of intent is more complicated than relying on a defendant's statement about his state of mind and that it is usually inferred or proven through circumstantial evidence. (Smith uses the term "knowingly" more than 30 times in the indictment against Trump.)

Randall Eliason, a law professor at George Washington University and a former assistant U.S. attorney, said the issue of intent goes beyond whether Trump simply thought he lost the election.

"Here's an example: I honestly believe my bank has ripped me off and stole my deposit money. That's a sincerely held belief, but it doesn't mean I could go to the bank and rob the bank. It's not an excuse," Randall said. "Just if you think your cause is righteous, that doesn't mean you have to break the law in response to try to fix it."

MORE: Criminal intent, free speech emerge as key issues in Trump's Jan. 6 indictment

Lauro: indictment is a violation of free speech.

Lauro repeatedly described the Justice Department's case as an "attack" on free speech and the constitutionally protected ability to "petition" the government for appropriate redress.

"President Trump believed in his heart of hearts that he had won that election and as any American citizen he had a right to speak out under the First Amendment," Lauro said on NBC's "Meet the Press."

On "This Week," Lauro made another First Amendment defense that Trump was simply asking then-Vice President Mike Pence to stop the certification of their defeat when Pence presided over the process on Jan. 6, in a ceremonial role.

"You're allowed to petition your government for a redress of grievances. A president is even allowed to petition his vice president. That has never been criminalized before," Lauro maintained.

The indictment made clear that Trump had a right to speak publicly about the election and to make false claims about fraud. It also noted that Trump took his case to the courts in dozens of lawsuits alleging fraud or irregularities and lost.

Multiple experts are dubious that a First Amendment defense will hold water in court given that Trump is accused of engaging in a broader criminal conspiracy (which include actions as well as speech) to subvert the 2020 election.

Prosecutors said in Trump's indictment that his alleged conspiracy included tapping a slate of so-called "fake electors" in several states; pressuring the Justice Department to launch "sham election crime investigations"; leaning on Pence to "alter the election results"; and repeating claims of voter fraud that Trump had already been told were unfounded to create a national atmosphere of mistrust.

"There is no general First Amendment shield against criminal liability," said Aziz Huq, a professor of law at the University of Chicago. Huq noted speech used in furtherance of a crime is generally not protected.

"That is, speech can be part of a criminal offense defined in a federal or state law," Huq added. "Indeed, this is quite common -- for example, threats or fraud."

Constitutional debate is not a crime, Lauro says

Speaking with ABC anchor George Stephanopoulos on "This Week," Lauro likened Trump's conversations about the 2020 election results leading up to Jan. 6 to constitutional discussions, which are "not criminal cases."

"People disagree all the time about constitutional points, but nobody gets indicted," Lauro said.

Michael Dorf, a constitutional law expert at Cornell Law School, countered that Trump is not charged with "simply misunderstanding the Constitution."

"The core of the indictment, as I understand it, is not simply that the president was urging followers to make bad arguments but that he was taking advantage of and creating circumstances that would actually obstruct the government from performing its basic function," Dorf said.

Lauro claim Pence was asked to 'pause' electoral count is disputed by Pence

A key element to Trump's alleged election interference conspiracy, according to prosecutors, was his pressure on Pence to block the congressional certification of President Joe Biden's victory.

Lauro argued instead that Trump was merely asking Pence to "pause" the certification for 10 days, to give state legislatures more time to weigh in.

Pence himself has rejected that assertion, stating he was being asked to "overturn the election."

MORE: Pence: 'No plans to testify' at Trump's Jan. 6 trial but would 'comply with the law'

Dorf said he didn't believe Lauro's argument was "a distinction that makes a difference."

"If the idea was that the purpose of the pause would be to send the election back to the states, where the hope was that he would be able to pressure people to act on false claims of election fraud, it's still one of the steps of this alleged illegal scheme," Dorf said.

Lauro: Trump is immune from prosecution

Lauro said on CBS' "Face the Nation" that Trump's attorneys plan to file a motion to dismiss based on "the fact that President Trump is immune as president from being prosecuted in this way."

Lauro claimed that Trump should be shielded from criminal liability because he was acting in his official capacity as president when the alleged felonies occurred.

But Huq and other legal scholars were skeptical of this view.

"I don't think there's an argument there, based upon either practice or the original understanding of the Constitution or the way that the Constitution is structured," Huq said.

Washington lacks impartial jury, Lauro says

Lauro also said that Trump's attorneys will seek to change venues for the trial, vying for West Virginia, because, he argued, any jury selection in liberal-leaning Washington would be prejudiced against the former president.

U.S. District Judge Tanya Chutkan, who has been assigned Trump's case, has previously weighed in on this issue with a defendant charged in connection with the Jan. 6 attack on the Capitol.

"Jurors' political leanings are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court," Chutkan ruled last year.

ABC News' Alexander Mallin contributed to this report.

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