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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

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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Events, news & press, free speech.

While many Americans take free speech for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting. Is it time to reconsider the nation’s free-speech orthodoxy?

Nearly everyone has experiences that contradict the children’s rhyme “sticks and stones may break my bones, but words will never hurt me.” Words can be painful. And that is particularly true in the age of social media, when a viral tweet or insensitive post can hurt feelings and damage reputations.

Despite this reality, the United States maintains a strong legal and cultural tradition of free speech. While many Americans take it for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting.

Is it time to reconsider the nation’s free-speech orthodoxy?

Part 1: What is freedom of speech?

The First Amendment of the Constitution says:

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

At its core, the Constitution’s robust protections for speech are intended to preserve and protect liberty. Hoover Institution senior fellow Peter Berkowitz  highlights  how the First Amendment connects freedom of speech with liberty:

Its position in the text of the First Amendment symbolizes free speech’s indissoluble connection to religious and political liberty. One can neither worship (or decline to worship) God in accordance with one’s conscience, nor persuade and be persuaded by fellow citizens, if government dictates orthodox opinions and punishes the departure from them. Indeed, the more authorities—whether formally through the exercise of government power, or informally through social intolerance—prescribe a single correct view and demonize others, the more citizens lose the ability to form responsible judgments and defend the many other freedoms that undergird human dignity and self-government.

Freedom of speech protects your right to say things that are disagreeable. It gives you—and everyone else—the right to criticize government policies and actions.

Part 2: What isn’t protected?

It sounds straightforward, “Congress shall make no law . . . abridging the freedom of speech,” but the First Amendment isn’t absolute. Hoover Institution senior fellow Richard Epstein  offers a framework  for how to think about free speech and its limits:

The First Amendment clearly covers the spoken word, written pamphlets, and books. By analogy, it also reaches other expressive activities like drawing, dancing, and acting. But no one could claim that it also protects mayhem, murder, defamation, and deceit. The only way to draw the right line—that between expression and violence—is to recognize that the First Amendment is as much about  freedom  as it is about speech. The necessary theory of freedom applies equally to all forms of speech and action, and it draws the line at the threat or use of force, even if the former counts as speech and the latter does not.

As the video below explains, the general principle of the nation’s free-speech rules is that your speech is protected so long as it doesn’t harm others.

But this raises the question: what should count as a harm? In our legal system there are well-defined examples where speech is not protected, because it hurts someone. You can’t lie about someone to harm their reputation. That’s called defamation. You can’t misrepresent the truth to people for your own gains. That’s fraud. And the First Amendment doesn’t permit you to advocate for the immediate use of force against someone else.

But there are other times when speech is protected even when someone may claim to be harmed. Mean or hateful words that may be true or a matter of opinion are generally protected by the First Amendment, even if they offend someone. You may think that is wrong. And there are plenty of countries that agree with you. Many countries have enacted strong hate-speech laws that prohibit derogatory remarks about a person’s race or religion. Peter Berkowitz  summarizes  new restrictive speech laws recently enacted by other nations:

In 2017, Germany enacted a law that obliges social media networks to be more “diligent in policing ‘hate speech’ on their platforms.” The next year, France adopted a similar law. A substantial plurality of British voters in 2018 believed that people do not feel free to express their opinions on “important issues.”

But there is a danger to these rules. As the video below highlights, enacting laws that ban offensive speech mean that “the people who disagree with you the  most  would have the most control over what you’re allowed to say.”

In an interview with Tunku Varadarajan , Richard Epstein explains the consequences of laws that ban offensive speech: “Everybody offends everybody a large fraction of the time. So, if I am insulting to you because you’re a progressive and you’re insulting to me because I’m a conservative, and if we allow both people to sue, then neither can talk.” The end result is that debate and free expression are stifled.

Part 3:  What about private restrictions on speech?

The First Amendment constrains the federal government from infringing on most speech, and the Fourteenth Amendment extended these constraints to state and local governments. But the First Amendment’s protections don’t apply to the personal and private interactions of people or businesses. If people disagree with you, they are free to stop listening. And companies are generally free to stop doing business with people with whom they disagree. Nor is anyone obligated to provide a forum for anyone else’s speech. Richard Epstein  explains:

Freedom of speech means that you have the right to use your own resources to advance your own causes. But it doesn’t give you, in the name of free speech, the right to take somebody’s telephone, somebody’s house, or somebody’s anything in order to use it for your own purposes.

But while private actors are not bound by the First Amendment, many private institutions have thrived because they have embraced a culture of free speech. For example, private universities have historically maintained broad academic freedoms for its faculty and students that allow for robust dissent on campuses. Recently, however, some universities have adopted policies that take a narrower view of what is acceptable speech.  Here’s Peter Berkowitz :

At universities, America’s founding promise of individual freedom and equality under law is often treated as irredeemably tainted by racism and sexism, colonialism and imperialism. In some cases, free speech is placed on the list of “incorrect phrases” that ought not be uttered, because it belongs among the “impure thoughts” of which minds must be cleansed.

Berkowitz notes, “Ninety percent of American universities censor speech or maintain policies that could authorize administrators to engage in censorship.” These rules are well intentioned. They are intended to promote a safe and welcoming environment for students and faculty. But a rejection of free speech has significant costs.

Part 4:  What are the benefits of free speech?

Without protections for speech—particularly for disagreeable speech—our liberties are more easily threatened. But free speech is important even beyond its value to our liberty. The free exchange of ideas—even ones that are disagreeable—is key to future prosperity. Hoover Institution research fellow Ayaan Hirsi Ali  explains  why:

Societies since the Enlightenment have progressed because of their willingness to question sacred cows, to foster critical thinking and rational debate. Societies that blindly respect old hierarchies and established ways of thinking, that privilege traditional norms and cower from giving offense, have not produced the same intellectual dynamism as Western civilization. Innovation and progress happened precisely in those places where perceived “offense” and “hurt feelings” were not regarded as sufficient to stifle critical thinking.

Diversity of thought isn’t just a matter of freedom; it is also an important ingredient to progress. When society discourages dissent or governments dictate the bounds of acceptable opinions, there is less innovation, and incorrect yet popular ideas go unchallenged. Economist Milton Friedman explains how diversity and freedom of all types are integral to a thriving society in this video:

Part 5: How do we preserve freedom of speech?

Preserving our liberties and ensuring a vibrant, innovative society requires free speech. Well-intentioned efforts to protect people from speech that offends is thus a threat to our free and prosperous society. What steps can we take to ensure free speech remains a cherished value for future generations?

Hoover Institution research fellow David Davenport  makes a case  for reprioritizing civic education in US schools. Testing reveals that a shrinking number of students are knowledgeable about US history. Increased funding and improved curriculum for civic education will ensure that future generations understand and appreciate the nation’s tradition of free speech.

Higher education also has a role to play. Public universities are generally bound by the First Amendment, but all universities—public and private—should remember the value academic freedom brings to campuses and to all of society. As Richard Epstein  argues :

The First Amendment prohibition does not allow one person to commandeer the property of another for his own purposes. But in terms of their roles in society, there is a critical difference between a university and a private business: Universities have as their central mission the discovery and promotion of knowledge across all different areas of human life.

Part 6:  Conclusion

All too often, support for free speech depends on who is talking and what is being said. Partisanship too frequently shapes our view of just how expansive the First Amendment should be. But we should remember how the nation’s strong tradition of free speech has helped protect the freedoms of all Americans. It has empowered citizens to speak against and undo unjust laws. And it has helped create a vibrant, diverse economy with widespread prosperity.

Does this mean there is nothing we can do about speech we find disagreeable or offensive? Certainly not. As  the video above explains : “The way to respond to offensive speech isn’t to use force—it’s to counter with persuasive speech of your own.”

Citations and Further Reading

In his essay  Rewriting the First Amendment ,  Richard Epstein explains the dangers of a proposed constitutional amendment to restrict spending for political speech.

In  an interview on  Uncommon Knowledge ,  Ayaan Hirsi Ali emphasizes the importance of free speech in addressing the nation’s racial inequalities.

To view the original article, click here .

View the discussion thread.

Join the Hoover Institution’s community of supporters in ideas advancing freedom.

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freedom of speech

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freedom of speech , right, as stated in the 1st and 14th Amendments to the Constitution of the United States , to express information, ideas, and opinions free of government restrictions based on content. A modern legal test of the legitimacy of proposed restrictions on freedom of speech was stated in the opinion by Oliver Wendell Holmes, Jr. in Schenk v. U.S. (1919): a restriction is legitimate only if the speech in question poses a “clear and present danger”—i.e., a risk or threat to safety or to other public interests that is serious and imminent . Many cases involving freedom of speech and of the press also have concerned defamation , obscenity , and prior restraint ( see Pentagon Papers ). See also censorship .

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.

Related content

• Examining the importance of free expression
• Podcast: SCOTUS Nears Unimaginable Era with Geoffrey Stone

Publications

The Free Speech Century

Geoffrey R. Stone, Lee C. Bollinger

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Freedom of Speech

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

1. Introduction: Boundaries of the Debate

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

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

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

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

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

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

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

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

2. The Harm Principle and Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. The Offense Principle and Free Speech

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

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

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

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

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

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

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

4. Democracy and Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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• Edwin Baker, C. 1992. Human Liberty and Freedom of Speech . Oxford: Oxford University Press.
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• –––, 1985, Offense to Others: The Moral Limits of the Criminal Law . Oxford: Oxford University Press.
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• Gates, H.L. 1995. Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties . New York: New York University Press.
• Graber, M.A. 1992. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism . Berkeley: University of California Press.
• Gray, J., 1996, Mill on Liberty: A Defence . London: Routledge.
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• Hashim Kamali, Mohammad. 1997. Freedom of Expression in Islam . Islamic Texts Society.
• Hobbes, Thomas, 1968, Leviathan , ed. C.B. Macpherson. London: Penguin Books.
• Jacobson, D., 2000, “Mill on Liberty, Speech, and the Free Society,” in Philosophy and Public Affairs , 29 no.3.
• Kateb, G., 1989, “The Freedom of Worthless and Harmful Speech” in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar . ed. Bernard Yack. Chicago: University of Chicago Press.
• Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies , Vol 50.
• Langton, R., 1990. “Whose Right? Ronald Dworkin, Women, and Pornographers,” in Philosophy and Public Affairs , 19, no.4.
• –––, 1993, “Speech Acts and Unspeakable Acts,” in Philosophy and Public Affairs , Vol.22, No.4.
• Lewis, A. 1995. Make No Law . Random House.
• Lyons, D., 1994, Rights, Welfare, and Mill's Moral Theory . New York: Oxford University Press.
• MacKinnon, C., 1987, Feminism Unmodified . Cambridge: Harvard University Press.
• Magee, J. 2002. Freedom of Expression . Greenwood Press.
• Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property .Minneapolis: University of Minnesota Press.
• Mill, J.S., 1978, On Liberty . Indianapolis:Hackett Publishing Press.
• Nelson, S.P. 1994. Beyond the First Amendment: The Politics of Free Speech and Pluralism . Baltimore: Johns Hopkins University Press.
• Netanel, N.W. 2008. Copyright's Paradox: Property in Expression/Freedom of Expression . Oxford: Oxford University Press.
• O'Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory . Routledge.
• Pinaire, B. 2008. The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections . Stanford: Stanford University Press.
• Post, S.G. 2003. Human Nature and the Freedom of Public Religious Expression . University of Notre Dame Press.
• Rauch, J. 1995. Kindly Inquisitors: The New Attacks on Free Thought . Chicago: University of Chicago Press.
• Raz, J., 1986, The Morality of Freedom . Clarendon: Oxford University Press.
• Rees, J.C., 1991, “A Re-reading of Mill on Liberty” in J.S. Mill-On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Riley, J., 1998, Mill on Liberty . New York: Routledge.
• Scanlon, T., 1972, “A Theory of Freedom of Expression,” Philosophy and Public Affairs , 1, no.2.
• Schauer, F. Free Speech: A Philosophical Enquiry . Cambridge: Cambridge University Press.
• Shiffrin, S. 1990. The First Amendment: Democracy and Romance . Cambridge MA: Harvard University Press.
• Soley, L. 2002. Censorship INC.: The Corporate Threat to Free Speech in the United States . Monthly Review Press.
• Stone, G. 2004. Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism .
• Strum, P. 1999. When the Nazis came to Skokie: Freedom for Speech We Hate . Kansas University Press.
• Sunstein, C., 1994, Democracy and the Problem of Free Speech . New York: Free Press.
• –––, 1995. Democracy and the Problem of Free Speech . Free Press.
• –––, 2003. Why Societies Need Dissent . Cambridge MA: Harvard University Press.
• Ten, C.L., 1991, “Mill's Defence of Liberty,” in J.S. Mill—On Liberty in Focus , eds. John Gray and G.W. Smith. London: Routledge.
• Walker, S. 1994. Hate Speech: The History of an American Controversy . University of Nebraska Press.
• Waluchow, W.J. 1994. Free Expression: Essays in Law and Philosophy . Oxford: Oxford University Press.
• West, C. 2003. “The Free Speech Argument Against Pornography”, Canadian Journal of Philosophy 33(3).
• West, Caroline, “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Fall 2005 Edition) , Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2005/entries/pornography-censorship/>.

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

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

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

Table of Contents

Arguments for freedom: the many reasons why free speech is essential.

• David Hudson

“The matrix, the indispensable condition, of nearly every other freedom”— that’s how Justice Benjamin Cardozo referred to freedom of speech. 

This eminent Justice is far from alone in his assessment of the lofty perch that free speech holds in the United States of America. Others have called it our blueprint for personal liberty and the cornerstone of a free society. Without freedom of speech, individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint, or express their individuality and autonomy. 

The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” This freedom represents the essence of personal freedom and individual liberty. It remains vitally important, because freedom of speech is inextricably intertwined with freedom of thought. 

Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance.

“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end,” warned Justice Anthony Kennedy in Ashcroft v. Free Speech Coalition (2002). “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

There are numerous reasons why the First Amendment has a preferred position in our pantheon of constitutional values.  Here are six.

Self-governance and a check against governmental abuse

Free speech theorists and scholars have advanced a number of reasons why freedom of speech is important. Philosopher Alexander Meiklejohn famously offered that freedom of speech is essential for individuals to freely engage in debate so that they can make informed choices about self-government. Justice Louis Brandeis expressed this sentiment in his concurring opinion in  Whitney v. California (1927): “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

In other words, freedom of speech is important for the proper functioning of a constitutional democracy. Meiklejohn advocated these ideas in his seminal 1948 work, “ Free Speech and Its Relation to Self-Government .” Closely related to this is the idea that freedom of speech serves as a check against abuse by government officials. Professor Vincent Blasi referred to this as “the checking value” of free speech. 

Liberty and self-fulfillment

The self-governance rationale is only one of many reasons why freedom of speech is considered so important. Another reason is that freedom of speech is key to individual fulfillment. Some refer to this as the “liberty theory” of the First Amendment.

Free-speech theorist C. Edwin Baker writes that “speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Justice Thurgood Marshall eloquently advanced the individual fulfillment theory of freedom of speech in his concurring opinion in the prisoner rights case  Procunier v. Martinez (1974) when he wrote: “The First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”

The search for truth and the ‘marketplace of ideas’ metaphor

Still another reason for elevating freedom of speech to a prominent place in our constitutional values is that it ensures a search for truth. 

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Justice Oliver Wendell Holmes expressed this idea in his “Great Dissent” in  Abrams v. United States (1919) when he wrote that “the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This language from Holmes led to one of the most pervasive metaphors in First Amendment jurisprudence—that of the “marketplace of ideas.” 

This concept did not originate with Holmes, as John Milton in the 17th century and John Stuart Mill in the 19th century advanced the idea that speech is essential in the search for truth in their respective works, “Areopagitica” (1644) and “On Liberty” (1859). Milton famously wrote: “Let [Truth] and Falsehood grapple, whoever knew Truth put to the worse, in a free and open encounter?” For his part, Mill warned of the “peculiar evil of silencing the expression of an opinion” explaining that “[i]f the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” 

Informational theory

The marketplace metaphor is helpful but incomplete. Critics point out that over the course of history, truth may not always prevail over false ideas. For example, Mill warned that truth sometimes doesn’t triumph over “persecution.” Furthermore, more powerful individuals may have greater access to the marketplace and devalue the contributions of others. Another critique comes from those who advocate the informational theory of free speech. 

Coronavirus and the failure of the 'Marketplace of Ideas'

“If finding objective truth were the only value of freedom of expression, there would be little value to studying history,”  explains Greg Lukianoff of FIRE . “ Most of human thought in history has been mistaken about its assumptions and beliefs about the world and each other; nevertheless, understanding things like superstitions, folk medicine, and apocryphal family histories has significance and value.” 

Under this theory, there is great value in learning and appreciating what people believe and how they process information. Lukianoff calls the metaphor for the informational theory of free speech “the lab in the looking glass.” The ultimate goal is “to know as much about us and our world as we can,” because it is vitally “important to know what people really believe, especially when the belief is perplexing or troubling.”

Safety valve theory

Another reason why freedom of speech is important relates to what has been termed the “safety valve” theory. This perspective advances the idea that it is good to allow individuals to express themselves fully and blow off steam.

If individuals are deprived of the ability to express themselves, they may undertake violent means as a way to draw attention to their causes or protests. Justice Brandeis advanced the safety valve theory of free speech in his concurring opinion in Whitney v. California (1927) when he wrote:

Those who won our independence believed . . . that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.

Tolerance theory

Free speech has also been construed to promote the virtue of tolerance: If we tolerate a wide range of speech and ideas, this will promote greater acceptance, self-restraint, and a diversity of ideas. 

Lee Bollinger advanced this theory in his 1986 work “The Tolerant Society.” This theory helps explain why we should tolerate even extremist speech. As Justice Holmes wrote in his dissent in  United States v. Schwimmer (1929), freedom of speech means “freedom for the thought that we hate.” This means that we often must tolerate extremist speech. As Chief Justice John G. Roberts, Jr. wrote in  Snyder v. Phelps (2011), we don’t punish the extremist speaker; instead “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Freedom of speech holds a special place in American law and society for many good reasons.

As Rodney Smolla writes in “Free Speech in an Open Society,” “[t]here is no logical reason . . . why the preferred position of freedom of speech might not be buttressed by multiple rationales.” Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance; it leads to a search for truth; it helps people express their individuality; and it promotes a tolerant society open to different viewpoints. 

In sum, it captures the essence of a free and open society.

• Free Speech

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Home — Essay Samples — Social Issues — Human Rights — Freedom of Speech

Argumentative Essays on Freedom of Speech

Freedom of speech essay topic examples, argumentative essays.

Argumentative essays on freedom of speech require you to take a stance on a specific aspect of this topic and provide evidence to support your viewpoint. Consider these topic examples:

• 1. Argue for the importance of protecting hate speech as a form of free expression, emphasizing the principles of free speech and the potential consequences of limiting it.
• 2. Debate the ethical implications of social media platforms censoring or moderating content, exploring the balance between maintaining a safe online environment and upholding free speech rights.

Example Introduction Paragraph for an Argumentative Freedom of Speech Essay: Freedom of speech is a cornerstone of democratic societies, but it often challenges our notions of what should be protected. In this argumentative essay, we will examine the importance of safeguarding hate speech as a form of free expression, exploring the principles of free speech and the potential ramifications of its restriction.

Example Conclusion Paragraph for an Argumentative Freedom of Speech Essay: In conclusion, the argument for protecting hate speech within the bounds of free expression highlights the enduring principles of democracy and free speech. As we navigate these complex debates, we must remain committed to preserving the foundations of our democratic society.

Compare and Contrast Essays

Compare and contrast essays on freedom of speech involve analyzing the similarities and differences between various aspects of free speech laws, practices, or the historical development of free speech rights in different countries. Consider these topics:

• 1. Compare and contrast the approach to freedom of speech in the United States and European Union, examining the legal frameworks, historical context, and key differences in their protection of free expression.
• 2. Analyze the evolution of freedom of speech in the digital age, comparing the challenges and opportunities presented by online platforms and the traditional forms of free expression.

Example Introduction Paragraph for a Compare and Contrast Freedom of Speech Essay: Freedom of speech varies across different countries and contexts, raising questions about the boundaries of this fundamental right. In this compare and contrast essay, we will explore the approaches to freedom of speech in the United States and the European Union, shedding light on their legal frameworks, historical backgrounds, and notable distinctions.

Example Conclusion Paragraph for a Compare and Contrast Freedom of Speech Essay: In conclusion, the comparison and contrast of freedom of speech in the United States and the European Union reveal the multifaceted nature of this fundamental right. As we examine these diverse perspectives, we gain a deeper appreciation for the complexities surrounding free expression in our globalized world.

Descriptive Essays

Descriptive essays on freedom of speech allow you to provide detailed accounts and analysis of specific instances, historical events, or contemporary debates related to free speech. Here are some topic ideas:

• 1. Describe a landmark Supreme Court case related to freedom of speech, such as the "Tinker v. Des Moines Independent Community School District" case, and its significance in shaping free speech rights for students.
• 2. Paint a vivid picture of a recent protest or demonstration where freedom of speech played a central role, discussing the motivations of the protesters, the public's response, and the outcomes of the event.

Example Introduction Paragraph for a Descriptive Freedom of Speech Essay: Freedom of speech is often tested and defined in the courtroom and in the streets. In this descriptive essay, we will delve into the landmark Supreme Court case "Tinker v. Des Moines Independent Community School District" and its profound impact on the free speech rights of students within the educational system.

Example Conclusion Paragraph for a Descriptive Freedom of Speech Essay: In conclusion, the descriptive exploration of the "Tinker" case illustrates the enduring struggle to balance students' free speech rights with the need for a productive educational environment. As we reflect on this historical event, we are reminded of the ongoing challenges in preserving and defining freedom of speech in schools.

Persuasive Essays

Persuasive essays on freedom of speech involve advocating for specific actions, policies, or changes related to the protection or limitations of free speech rights. Consider these persuasive topics:

• 1. Persuade your audience of the importance of enacting legislation to combat "cancel culture" and protect individuals' right to express unpopular opinions without fear of social or professional consequences.
• 2. Advocate for greater transparency and accountability in social media content moderation practices, highlighting the potential impact on free speech and the public's right to access diverse information.

Example Introduction Paragraph for a Persuasive Freedom of Speech Essay: The boundaries of free speech are continually tested in our rapidly changing society. In this persuasive essay, I will make a compelling case for the necessity of legislation to combat "cancel culture" and preserve individuals' right to express dissenting views without facing severe social or professional repercussions.

Example Conclusion Paragraph for a Persuasive Freedom of Speech Essay: In conclusion, the persuasive argument for legislation against "cancel culture" underscores the importance of safeguarding free speech in the face of societal pressures. As we advocate for change, we contribute to the preservation of a diverse and inclusive marketplace of ideas.

Narrative Essays

Narrative essays on freedom of speech allow you to share personal stories, experiences, or observations related to free speech, your encounters with debates or controversies, or the impact of free expression on your life. Explore these narrative essay topics:

• 1. Narrate a personal experience where you exercised your right to free speech, detailing the circumstances, motivations, and reactions from others, and reflecting on the significance of your actions.
• 2. Share a story of your involvement in a community or online discussion where freedom of speech played a central role, emphasizing the challenges and rewards of engaging in open dialogue.

Example Introduction Paragraph for a Narrative Freedom of Speech Essay: Freedom of speech is not just an abstract concept; it is a lived experience. In this narrative essay, I will take you through a personal journey where I exercised my right to free speech, recounting the circumstances, motivations, and the impact of my actions on those around me.

Example Conclusion Paragraph for a Narrative Freedom of Speech Essay: In conclusion, the narrative of my personal experience with free speech highlights the transformative power of open dialogue and individual expression. As we share our stories, we contribute to the rich tapestry of voices that define our commitment to this essential democratic principle.

Rights to Freedom of Speech and Expression

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Controversial Points of Free Speech

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The Issue of Free Speech and Hate Speech on Campus

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Freedom of speech is the right to express one’s opinions and ideas without fear of government retaliation or censorship. This fundamental human right is protected under various laws and constitutions worldwide, including the First Amendment to the United States Constitution.

• The right to seek information and ideas.
• The right to receive information and ideas.
• The right to impart information and ideas.

The concept of freedom of speech has deep historical roots, originating in ancient civilizations like Greece and Rome, where free expression was valued for democratic governance. During the Enlightenment, thinkers like John Locke and Voltaire advocated for free speech, influencing modern democratic societies. Key historical moments, such as the American and French Revolutions, further solidified free speech protections. Today, it is enshrined in documents like the Universal Declaration of Human Rights and the U.S. Constitution's First Amendment.

• Thomas Jefferson: As one of the Founding Fathers of the United States, Jefferson was a staunch advocate for freedom of speech. He believed that a free exchange of ideas was vital for a democratic society and emphasized its protection in the First Amendment.
• Voltaire: A French philosopher and writer, Voltaire championed the principles of free expression and tolerance. His writings challenged oppressive regimes and promoted the idea that individuals should have the right to speak their minds without fear of persecution.
• Martin Luther King Jr.: Known for his leadership in the American civil rights movement, King passionately defended free speech as a means to advocate for social justice. His powerful speeches and peaceful protests were instrumental in promoting equality and challenging systemic racism.
• John Stuart Mill: An influential philosopher and political economist, Mill articulated the concept of the "marketplace of ideas" and argued for unrestricted freedom of speech. He believed that through open and robust debate, society could discover the truth and prevent the suppression of minority viewpoints.

Public opinion on freedom of speech varies widely due to diverse cultural, societal, and legal factors. While many uphold free speech as a fundamental right, others worry about its boundaries and consequences. Cultural norms and historical experiences shape these perspectives, influencing the balance between individual freedoms and collective well-being. Technological advancements and social media have further complicated views, raising concerns about online harassment, misinformation, and the regulation of speech. These dynamics highlight the ongoing debate over the responsible use of free speech in the digital age.

• Protection of democratic principles
• Advancement of knowledge and progress
• Promotion of individual autonomy
• Protection of minority rights
• Defense against tyranny
• Harmful and hateful speech
• Protection of vulnerable groups
• Misinformation and propaganda
• Privacy and dignity
• Societal stability and public safety
• The recognition of speech protection can be traced back to the signing of the Magna Carta in 1215, marking an early milestone in safeguarding the freedom of expression.
• In 399 BC, the renowned Greek philosopher Socrates faced persecution for his advocacy of unrestricted speech, showcasing the historical roots of the ongoing struggle for free speech rights.
• A significant majority, approximately 70% of Americans, believe in the importance of granting individuals the right to free speech, even if their words are deemed highly offensive or controversial.
• A pivotal moment for student rights came in 1969 with the Supreme Court case Tinker v. Des Moines, which affirmed that students maintain their right to free speech even within the confines of school hours.

The topic of freedom of speech is crucial because it underpins democratic societies, allowing for open dialogue, dissent, and the exchange of ideas. Exploring freedom of speech essay topics helps understand its role in promoting individual rights and societal progress. These topics encourage critical thinking about the balance between free expression and protecting against harm, highlighting the importance of preserving this fundamental right in diverse contexts.

1. Sullivan, K. M. (2010). Two concepts of freedom of speech. Harvard Law Review, 124(1), 143-177. (https://www.jstor.org/stable/20788316) 2. Van Mill, D. (2002). Freedom of speech. (https://plato.stanford.edu/ENTRIES/freedom-speech/) 3. Bogen, D. (1983). The origins of freedom of speech and press. Md. L. Rev., 42, 429. (https://heinonline.org/HOL/LandingPage?handle=hein.journals/mllr42&div=20&id=&page=) 4. Yong, C. (2011). Does freedom of speech include hate speech?. Res Publica, 17, 385-403. (https://link.springer.com/article/10.1007/s11158-011-9158-y) 5. McHugh, M. R. (2004). Historiography and freedom of speech: the case of Cremutius Cordus. In Free Speech in Classical Antiquity (pp. 391-408). Brill. (https://brill.com/display/book/edcoll/9789047405689/B9789047405689-s018.xml) 6. Milo, D. (2008). Defamation and freedom of speech. (https://academic.oup.com/book/2591) 7. Helwig, C. C. (1998). Children's conceptions of fair government and freedom of speech. Child Development, 69(2), 518-531. (https://srcd.onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-8624.1998.tb06205.x) 8. Cheung, A. S. (2011). Exercising freedom of speech behind the great firewall: A study of judges’ and lawyers’ blogs in China. Harvard International Law Journal Online. (https://harvardilj.org/wp-content/uploads/sites/15/2011/04/HILJ-Online_52_Cheung1.pdf) 9. Nieuwenhuis, A. (2000). Freedom of speech: USA vs Germany and Europe. Netherlands Quarterly of Human Rights, 18(2), 195-214. (https://journals.sagepub.com/doi/pdf/10.1177/092405190001800203)

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

by Geoffrey R. Stone

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

by Eugene Volokh

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Money, Politics, and the First Amendment

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

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

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

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

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

The Meaning of “Low” Value Speech

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

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

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

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

Leaks of Classified Information

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

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

Professional-Client Speech

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

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

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

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

Crime-Facilitating Speech

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

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

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

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

“Hostile Environment Harassment” Rules

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

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

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

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

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A philosopher makes the case against free speech

And I push back.

by Sean Illing

I don’t consider myself an absolutist about anything — except for free speech.

The value of free expression seems so fundamental to me that it hardly needs a defense. It is, after all, enshrined in the First Amendment of the US Constitution. But like any dogma, there is utility in occasionally challenging the assumptions that undergird it.

Which brings me to a paper I recently read in the Sydney Law Review , titled “The Case Against Free Speech.” The author is Brian Leiter, a political philosopher at the University of Chicago. Leiter argues that we shouldn’t think of free speech as an inherently good thing and that there are negative consequences for pretending that it is.

The sort of speech he’s talking about is public, the kind of stuff we hear on television or read in newspapers. He’s not suggesting we should even think about regulating private or interpersonal speech. And in fact, he doesn’t think we can even regulate public speech, mostly because we just don’t have a reliable way to do it.

But he does raise some interesting objections against what’s often called the “autonomy” defense of free speech, which holds that people are only free to the extent that they’re allowed to say what they want, read what they want, and determine for themselves what is true and what is false.

According to Leiter, this is a bogus argument because people are not actually free in the way we suppose. We’re all conditioned by our environment, and what we want and think are really just products of social, economic, and psychological forces beyond our control. If he’s right, then the “autonomy” defenses of free speech are just wrong, and probably dangerous.

I spoke to Leiter about what he thinks we get wrong about free speech, and why most of the arguments people make in defense of it fall apart when you examine them closely. A lightly edited transcript of our conversation follows.

Sean Illing

Let me start by summing up your argument as simply as I can, and then we can go from there. I take you to be saying that most of our public speech, the kind of speech we consider morally and politically serious, is not only useless but actually hinders our collective effort to get at the truth, and therefore we shouldn’t permit its expression without considering the social costs.

Brian Leiter

That’s really close, but I think it’s not quite right in one important respect. Because at the end, I actually argue for a pretty strong libertarian approach to free speech, but not on the grounds that the speech necessarily has value. A lot of it has no value, as you correctly said in your summary.

But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech. But this says more about the pathologies of the American system than it does about the value of freedom of speech.

We’ll come back to the regulator problem, because I think it ultimately undercuts any effort we could ever make to control speech. Maybe it’ll help if you first explain why you want to take a sledgehammer to this assumption that free speech is an inherently good thing for society.

My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.

But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.

As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.

Okay, I’m glad you brought up your court analogy. Here’s my problem: A courtroom and a political community are wildly different contexts, which even you acknowledge in the article. To take just one difference: A court’s job is to establish the facts so that jurists can decide accordingly. But politics is about values as much as facts. Is there any way for a community to decide how to live and what’s worth pursuing without allowing the free exchange of ideas?

Fair question. I would disagree a bit with the assumption that politics is mainly about values rather than facts. An awful lot of politics is about facts and their relationship to the values that can be realized in concrete policies.

So take one of the examples I use: the Bush administration’s efforts to justify the illegal war of aggression against Iraq in 2003. That turned heavily on the misrepresentation of the facts. It turned heavily on Fox News, in particular, indoctrinating a large part of the population into thinking there was some connection between Saddam Hussein and al-Qaeda when there was none.

And then take something like climate change, where there’s a constant disagreement about the facts with so-called skeptics who insist, in the public sphere, that the science doesn’t really establish this. These are fact disputes, not value disputes.

I certainly agree with you that there are value disputes, but the establishment of facts is hugely important.

Just to be clear, I’m not saying facts don’t matter. I’m saying politics is about deciding what we ought to do in light of what is. And in order to have that kind of conversation, we need the free exchange of ideas.

Again, I’d resist that a little bit. I think most of our disputes are about factual questions. I mean, Bernie Sanders and Elizabeth Warren aren’t saying, “In order to promote the values of equality and well-being, we need higher taxes on the rich.” And the other side isn’t saying, “We’re not interested in equality or freedom.” They say, “We don’t think that’s the way to realize those values.”

I disagree about that, but I don’t want tumble down a rabbit hole here, so let’s stay on topic. Is there any way to maintain a free society without simply accepting that most opinions on serious topics are bad and ill informed, and yet that’s the price we pay for allowing citizens to express their political identity?

There is clearly a lot of value to people in letting them express their political identity, their moral views, and so on. It’s important to people’s well-being to be able to speak their mind. I don’t want to discount the value of that. I just think that’s one value that should go into a broader calculation that takes into account all the harms that are related to the expression of certain kinds of views.

Do you think people are free in any meaningful sense if what they’re allowed to hear, or see, or read, is controlled or constrained in any way?

It depends on what kind of control and regulation is involved. So I’ll give you another analogy. I control what the students in my class read and discuss. I actually think this enhances their freedom and their autonomy by bringing to their attention substantive materials, helping them frame thinking about these particular issues, and so on. So regulation isn’t necessarily incompatible with free thinking.

But that brings us back to the question I touched on at the very beginning. The best argument for broad freedom of expression is skepticism about whether those who would regulate expression would do so in a way that was productive and constructive, rather than simply making things worse.

Although you keep expressing skepticism, you still seem to think we’d be better off with gatekeepers — some institution or body of institutions that decides what should or shouldn’t be expressed in the public sphere.

That would seem to be the conclusion following from the arguments in the first part of the paper. But my conclusion is that even if there isn’t enough positive value to speech to justify its unfettered expression, there are certainly reasons to be worried about whether capitalist democracies will regulate speech in ways that aren’t simply pernicious.

But this has more to do with the pathologies of our political system than it does to do with the intrinsic value of speech. That’s one of the main points I’m pressing on in this article.

As I read your paper, I kept thinking about the media critic Walter Lippmann ( whom I wrote about for Vox ), who struggled with these same questions. He didn’t think most people could be trusted to decide intelligently what ought to be done, so he wanted technocrats and experts to act as mediators of sorts. But the problem is always, who are the arbiters of worthy speech in this imagined order? And how will we stop them from abusing their power?

Under the current circumstances, I think that’s exactly right. But I’ll also quote the German philosopher Herbert Marcuse, who, when asked, “Who will make these decisions,” said, “Who makes them now?” And that’s worth bearing in mind.

These decisions are, in fact, being made now. They just aren’t being made by bureaucrats. They’re being made by Rupert Murdoch, by editors behind the scenes, by producers on TV programs, who themselves are responsive to all kinds of interested parties.

What’s the alternative? We either live in a free society, or we don’t. There does not seem to be much room for compromise here. I mean, there’s no marketplace of ideas that isn’t saturated with bad ideas, right?

I guess it’s a matter of degree. Again, I think the big problem now has to do with the pathologies of our political and economic system. Maybe what we need is for the political and economic system to change if we’re ever going to adopt a more sensible approach to the regulation of expression.

I also think most people fail to understand what’s meant by “free society.” No one thinks we don’t live in a free society because there are restrictions on public masturbation or public sex, right? There are always limits. We countenance all kinds of restrictions on freedom. It’s always about trade-offs, and what we’re ultimately willing to live with.

Well, I’d say free speech is crucial to individual liberty in a way that, say, public masturbation isn’t, but that’s another argument. It’s still not clear to me what you’d have us do? What is the solution here?

It’s important to recognize that most of what any of us believe about the world depends on intermediaries, people who guide us as to what we ought to believe because it’s true. I believe in evolution by natural selection, but not because I did all the experiments in the lab.

The big crisis of the internet era is that it has eliminated a lot of the traditional intermediaries, such as the New York Times or the Wall Street Journal or PBS or the BBC and so on. Those old intermediaries weren’t perfect, but they were better than what we have now. So I think we need better intermediaries that help people to sort out the world.

But again, I don’t anticipate a law being passed that shuts down Sean Hannity or Rush Limbaugh — we’re stuck with them. Which means we’re stuck with a public sphere filled with nonsense. So the short answer is that we’re screwed.

Look, the ideal political system is one in which everyone is wise and discerning and cares very deeply about the truth. But such a system is not possible, has never been possible, and so we must live in the least imperfect and most just society possible. Has liberal democracy not proven to be just that?

I’m not sure it’s that simple. Liberal democratic societies have certain values, and they’re mostly good. But the problem is having a capitalist economic system that pollutes the public domain and presents all sorts of obstacles to the intelligent expression and regulation of speech.

Under capitalism, at least the sort of capitalism we have now, the ruling class completely distorts our political process and the laws that get enacted. Until we do something about that, we’re not going to be in any position to hope that regulation of speech, let alone other aspects of law, will actually be conducive to human well-being.

This is ultimately why I don’t know what to do with your paper. I agree with your general diagnosis here, and yet we end up in a dead end.

Well, if I may reference one of my favorite philosophers, whom I know you like as well, Nietzsche said, “Sometimes the truth is terrible.” And I think there’s value in recognizing the truth of our situation, even if it’s terrible.

We have massive amounts of worthless, dangerous speech in the public sphere right now, and at the same time I can’t see any legal remedy that isn’t likely to be used for even more pernicious ends. But the situation we’re currently in is quite dire, and the fact that we have a monster child as our president is proof of that fact.

Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?

The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.

But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.

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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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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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• Essay on Freedom of Speech in English Free PDF download

Download Important English Essay on the Topic - Freedom of Speech Free PDF from Vedantu

One of the fundamental rights of the citizens of India is ‘Freedom of Speech’. This is allowed to the citizens by a lot of countries to empower the citizens to share their own thoughts and views. This freedom of speech essay is for students of class 5 and above. The language used in this essay is plain and simple for a better understanding of the students. This freedom of speech essay example will help the students write a paragraph on freedom of speech in their own words easily.

Long Essay on Freedom of Speech

The phrase “Freedom of Speech” has been misinterpreted by some individuals who either do not actually understand the meaning of the phrase completely or have a totally different agenda in mind altogether. Every democratic country gives its citizens this freedom. The same is guaranteed by the Constitution of India too. Irrespective of your gender, religion, caste, or creed, you are guaranteed that freedom as an Indian. The values of democracy in a country are defined by this guaranteed fundamental freedom. The freedom to practice any religion, the freedom to express opinions and disagreeing viewpoints without hurting the sentiments or causing violence is what India is essentially made up of.

Indians stand out for their secularism and for spreading democratic values across the world. Thus, to save and celebrate democracy, enforcing freedom of speech in India becomes a necessity. Freedom of speech is not only about the fundamental rights, it’s also a fundamental duty to be done by every citizen rightfully so as to save the essence of democracy.

In developed democracies like the US, UK, Germany or France, we see a “freedom of speech” that is different from what we see in authoritarian countries like China, Malaysia or Syria and failed democratic countries like Pakistan or Rwanda. These governance systems failed because they lacked freedom of speech. Freedom of press gives us a yardstick to gauge the freedom of speech in a country. A healthy, liberal and strong democracy is reflected by a strong media presence in a country, since they are supposed to be the voice of the common people. A democracy that has a stomach for criticisms and disagreements is taken in a positive way. 

Some governments get very hostile when faced with any form of criticism and so they try to oppress any voices that might stand against them. This becomes a dangerous model of governance for any country. For example, India has more than hundred and thirty crores of population now and we can be sure that every individual will not have the same thought process and same views and opinions about one thing. A true democracy is made by the difference of opinions and the respect people have for each other in the team that is responsible for making the policies.

Before making a choice, all aspects and angles of the topic should be taken into consideration. A good democracy will involve all the people - supporters and critics alike, before formulating a policy, but a bad one will sideline its critics, and force authoritarian and unilateral policies upon all of the citizens.

Sedition law, a British-era law, was a weapon that was used in India to stifle criticism and curb freedom of speech during the pre-independence era. Through section 124A of Indian Penal Code, the law states that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual can be fined or jailed or fined and jailed both. This law was used by the Britishers to stifle the freedom fighters. Today it is being used by the political parties to silence criticism and as a result is harming the democratic values of the nation. 

Many laws in India also protect the people in rightfully exercising their freedom of expression but the implementation of these laws is proving to be a challenge. Freedom of speech cannot be absolute. In the name of freedom of speech, hatred, tensions, bigotry and violence too cannot be caused in the society. It will then become ironically wrong to allow freedom of speech in the first place. Freedom of speech and expression should not become the reason for chaos and anarchy in a nation. Freedom of speech was stifled when article 370 got revoked in Kashmir. Not that the government was trying to go against the democratic values, but they had to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Short Essay on Freedom of Speech

Freedom of speech allows the people of our country to express themselves, and share their ideas, views and opinions openly. As a result, the public and the media can comment on any political activity and also express their dissent towards anything they think is not appropriate.

Various other countries too provide freedom of speech to their citizens but they have certain limitations. Different countries have different restrictions on their freedom of speech. Some countries also do not allow this fundamental right at all and the best example being North Korea. There, the media or the public are not allowed to speak against the government. It becomes a punishable offence to criticize the government or the ministers or the political parties.

Key Highlights of the Essay - Freedom of Speech

Every democratic country gives its citizens the Freedom of Speech so as to enable the citizens to freely express their individual views, ideas and concerns. The freedom to be able to practice any religion, to be able to express individual secularism and for spreading democratic values across the world. In order to be able to save and to celebrate democracy, enforcing freedom of speech in India Is essential. Freedom of speech  about fundamental rights is also a fundamental duty of citizens in order to save the essence of democracy.  In a country, a healthy, liberal and strong democracy is always  reflected and can be seen through a strong media presence, as the media are the voice of the common people.  When faced with any form of criticism, we see some governments get very hostile,  and they  try to oppress  and stop any kind of  voices that might go against them. This is not favorable for any country. 

A good democracy involves all the people - all their various  supporters and critics alike, before they begin formulating any policies. India had the Sedition law, a British-era law that is used to stifle criticism and curb freedom of speech during the pre-independence era. The section 124A of Indian Penal Code, this law of sedition stated that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual, then he can be fined or jailed or both. Using  freedom of speech, people spread hatred, unnecessary tensions, bigotry and some amount of violence too in the society. Ironically  in such cases, it will be wrong to allow freedom of speech. The reasons for chaos and anarchy in a nation should not be due to  Freedom of speech and expression. This law was stifled when article 370 got revoked in Kashmir, in order to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Freedom of speech gives people of our country, the freedom to express themselves, to be able to share their ideas, views and opinions openly, where the public and the media can express and comment on any political activities and can also be able to express their dissent towards anything they think is not appropriate. Different countries have different restrictions on their freedom of speech. And it is not proper to comment on that .In Fact, there are some countries which does not allow this fundamental right , for example, North Korea where neither the media nor the public have any right to speak against or even for the government and it is a punishable offense to openly criticize the government or the or anyone in particular.

While freedom of speech lets the society grow it could have certain negative outcomes. It should not be used to disrespect or instigate others. The media too should not misuse it. We, the people of this nation, should act responsibly towards utilizing its freedom of speech and expression. Lucky we are to be citizens of India. It’s a nation that respects all its citizens and gives them the rights needed for their development and growth.

A fundamental right of every citizen of India, the  ‘Freedom of Speech’ allows citizens to share their individual thoughts and views.

FAQs on Essay on Freedom of Speech in English Free PDF download

1. Mention five lines for Freedom of Speech Essay?

i) A fundamental right that is guaranteed to citizens of a country to be able to express their opinions and points of view without any kind of censorship.

ii) A democracy’s health depends on the extent of freedom of expression of all its citizens.

iii) Freedom of speech is never absolute in nature.

iv) New Zealand, USA or UK rank  high in terms of freedom of speech by its citizens.

v) A fundamental right in the Indian constitution is the Freedom of Speech and Expression.

2. Explain Freedom of Speech?

A fundamental right of every citizen of India, Freedom Of Speech allows every citizen the freedom and the right to express all their views, concerns, ideas and issues relating to anything about their country. Freedom of Speech is never actual in nature  and has its limits too. It cannot be used for any kind of illegal purposes.The health of a democracy depends on the extent of freedom of expression of its citizens.

3. What happens when there is no Freedom of Speech?

A country will become a police and military state with no democratic and humanitarian values in it if there is no freedom of speech. Freedom of Speech is a fundamental right for all citizens, and a failure to not being able to express one’s ideas, beliefs, and thoughts will result in a non authoritarian and non democratic country.  Failure to have freedom of speech in a country would mean that the rulers or the governments of those countries have no respect for its citizens.

4. Where can we get study material related to essay writing ?

It is important to practice some of the important questions in order to do well. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. Various essay writing topics, letter writing samples, comprehension passages are all available at the online portals today. Practicing and studying with the help of these enable the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

You can avail all the well-researched and good quality chapters, sample papers, syllabus on various topics from the website of Vedantu and its mobile application available on the play store. 

5. Why should students choose Vedantu for an essay on the topic 'Freedom of Speech’?

Essay writing is important for students   as it helps them increase their brain and vocabulary power. Today it is important to be able to practice some important topics, samples and questions to be able to score well in the exams. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. The NCERT and other study material along with their explanations are very easily accessible from Vedantu.com and can be downloaded too. Practicing with the help of these questions along with the solutions enables the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

6. What is Freedom of Speech?

Freedom of speech is the ability to express our opinions without any fear.

7. Which country allows the highest level of Freedom of Speech to its citizens?

The USA is at the highest with a score of 5.73.

8. Is Freedom of Speech absolute?

No, freedom of speech cannot be absolute. It has limitations.

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On Thesis Statements

The thesis statement.

This is not an exhaustive list of bad thesis statements, but here're five kinds of problems I've seen most often. Notice that the last two, #4 and #5, are not necessarily incorrect or illegitimate thesis statements, but, rather, inappropriate for the purposes of this course. They may be useful forms for papers on different topics in other courses.

A thesis takes a position on an issue. It is different from a topic sentence in that a thesis statement is not neutral. It announces, in addition to the topic, the argument you want to make or the point you want to prove. This is your own opinion that you intend to back up. This is your reason and motivation for writing.

Bad Thesis 1

Bad Thesis 2 : This paper will consider the advantages and disadvantages of certain restrictions on free speech.

Better Thesis 1 : Stanley Fish's argument that free speech exists more as a political prize than as a legal reality ignores the fact that even as a political prize it still serves the social end of creating a general cultural atmosphere of tolerance that may ultimately promote free speech in our nation just as effectively as any binding law.

Better Thesis 2 : Even though there may be considerable advantages to restricting hate speech, the possibility of chilling open dialogue on crucial racial issues is too great and too high a price to pay.

A thesis should be as specific as possible, and it should be tailored to reflect the scope of the paper. It is not possible, for instance, to write about the history of English literature in a 5 page paper. In addition to choosing simply a smaller topic, strategies to narrow a thesis include specifying a method or perspective or delineating certain limits.

Bad Thesis 2 : The government has the right to limit free speech.

Better Thesis 1 : There should be no restrictions on the 1st amendment if those restrictions are intended merely to protect individuals from unspecified or otherwise unquantifiable or unverifiable "emotional distress."

Better Thesis 2 : The government has the right to limit free speech in cases of overtly racist or sexist language because our failure to address such abuses would effectively suggest that our society condones such ignorant and hateful views.

A thesis must be arguable. And in order for it to be arguable, it must present a view that someone might reasonably contest. Sometimes a thesis ultimately says, "we should be good," or "bad things are bad." Such thesis statements are tautological or so universally accepted that there is no need to prove the point.

Bad Thesis 2 : There are always alternatives to using racist speech.

Better Thesis 1 : If we can accept that emotional injuries can be just as painful as physical ones we should limit speech that may hurt people's feelings in ways similar to the way we limit speech that may lead directly to bodily harm.

Better Thesis 2 : The "fighting words" exception to free speech is not legitimate because it wrongly considers speech as an action.

A good argumentative thesis provides not only a position on an issue, but also suggests the structure of the paper. The thesis should allow the reader to imagine and anticipate the flow of the paper, in which a sequence of points logically prove the essay's main assertion. A list essay provides no such structure, so that different points and paragraphs appear arbitrary with no logical connection to one another.

Bad Thesis 2 : None of the arguments in favor of regulating pornography are persuasive.

Better Thesis 1 : Among the many reasons we need to limit hate speech the most compelling ones all refer to our history of discrimination and prejudice, and it is, ultimately, for the purpose of trying to repair our troubled racial society that we need hate speech legislation.

Better Thesis 2 : None of the arguments in favor of regulating pornography are persuasive because they all base their points on the unverifiable and questionable assumption that the producers of pornography necessarily harbor ill will specifically to women.

In an other course this would not be at all unacceptable, and, in fact, possibly even desirable. But in this kind of course, a thesis statement that makes a factual claim that can be verified only with scientific, sociological, psychological or other kind of experimental evidence is not appropriate. You need to construct a thesis that you are prepared to prove using the tools you have available, without having to consult the world's leading expert on the issue to provide you with a definitive judgment.

Bad Thesis 2 : Hate speech can cause emotional pain and suffering in victims just as intense as physical battery.

Better Thesis 1 : Whether or not the cultural concept of free speech bears any relation to the reality of 1st amendment legislation and jurisprudence, its continuing social function as a promoter of tolerance and intellectual exchange trumps the call for politicization (according to Fish's agenda) of the term.

Better Thesis 2 : The various arguments against the regulation of hate speech depend on the unspoken and unexamined assumption that emotional pain is either trivial.

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Understanding hate speech

Hate speech versus freedom of speech

The need to preserve freedom of expression from censorship by States or private corporations’ is often invoked to counter efforts to regulate hateful expression, in particular online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as to peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable that digital media, including social media, have bolstered the right to seek, receive and impart information and ideas. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition.

To counter hate speech, the United Nations supports more positive speech and upholds respect for freedom of expression as the norm. Therefore, any restrictions must be an exception and seek to prevent harm and ensure equality or the public participation of all. Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action provides key guidance to States on the difference between freedom of expression and “incitement” (to discrimination, hostility and violence), which is prohibited under criminal law. Determining when the potential of harm is high enough to justify prohibiting speech is still the subject of much debate. But States can also use alternative tools – such as education and promoting counter-messages – to address the whole spectrum of hateful expression, both on and offline.

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General António Guterres, May 2019