freedom of speech social media essay

Freedom of Speech in Social Media Essay

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Annotated Bibliography

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

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

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

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

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

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

Freedom of expression.

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

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

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

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

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

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

Freedom of expression (no date). Web.

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

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

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

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

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

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

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

Bibliography

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

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Tech & rights, ​free speech on social media: filtering methods, rights, future prospects, yes, our right to free speech absolutely exists online. but there is serious debate about how to regulate our freedom of speech in the online sphere, particularly on social media..

by LibertiesEU

Knowledge is power. Your contribution counts.

The rise of social media has implications for our fundamental rights, perhaps none more so than our freedom of speech. There is no doubt that our right to free speech extends online. But there is considerable and complex debate on how to regulate the online sphere, particularly social media. How the regulations are constructed, where the lines are drawn, will have huge implications for our freedom of speech on social media.

What does free speech mean?

Free speech means you have the freedom to express yourself in any way that does not take away the rights of other people. You can (and should) feel free to criticize the work your elected officials are doing. You should not feel free to hold band practice late into the night, because that could take away your neighbors’ right to privacy. And when they complain about the noise, you can’t encourage people to destroy their property or worse. But up to that point, you’re free to express yourself.

This is why free speech is so central to democracy. Democracy means that everyone in society makes collective decisions about the laws they live under and who administers them. The free exchange of ideas, opinions and information provide us with the knowledge we need to make those decisions. That’s also why free speech and the organs that support it, such as free media and civil society, are often the first things that disappear in autocracies.

We all deserve to have our say

But it is becoming harder to speak up about the issues we care about. Support Liberties standing up for our right to free speech.

Free speech gives us our voice

How free is speech on social media and on the internet in general.

The extent to which someone can freely express themselves online varies from country to country. In the EU, the bloc has laws that protect our freedom to express ourselves online. In some cases, the ease of online speech has allowed it to step far beyond the bounds of free speech – consider online bullying or threats, or the sharing of extremist content or child pornography. These forms of “expression” are not protected speech.

But in other areas, drawing the line is more complicated. The EU has been dealing with how to protect the rights of copyright owners against the right of people to share legal content. Should such an enormous and difficult task be farmed out to AI? Surely some of it must be, but how this is done could have profound implications for free speech.

Liberties has been adamant that compromising free speech, even putting it at potential risk, is a no-go. And that’s how it should be – if we are to err, let it be that not enough of our fundamental right to free speech was limited, and not that we gave too much of it away. That’s why we’ve advocated for users’ free speech during the EU’s work on new copyright law. And why we warned European decision-makers that their plan to regulate online terrorist content might unduly restrict free speech .

We are also mindful of the role online platforms have in determining free speech. Although we may use their services to share our thoughts, there is an obvious danger in making them arbiters of what is and is not free speech. Such decisions need to be made by independent judges, and certainly not by companies with a vested interest in making sure the content they allow and promote is good business for them.

What is important to know about free speech rights on social media?

The rise of social media has given new importance to protecting free speech. People are often able to stay anonymous when they say things – not necessarily a bad thing, especially in places where criticizing the government can put you or your family in danger. Or when you want to seek help for a private medical issue. But social media allows people to use anonymity to bully, harass, intimidate or stalk people.

Social media also gives everyone a platform. Again, this is not an inherently bad thing. It not only allows anyone to share their ideas, but connects us faster and cheaper, allowing us to exchange ideas and create things. But it also gives people the ability to easily spread disinformation that can cause harm both to individuals and society as a whole.

How do social media companies filter speech?

Social media companies can filter speech, and thus limit free speech, by using both humans and artificial intelligence to review content that might not be free to share. They can remove what you share or block you from sharing content lawfully if your content is not protected speech, for instance if you use social media to incite violence against someone. And, of course, social media companies have terms of service that have myriad more causes for sanction. (Although it can be the case that their terms of services can breach the law by limiting lawful content.)

Speaking up starts with getting informed.

Perhaps the most drastic form of social media filtering speech is by blocking some people from using their service at all. This has the effect of limiting the voices that can be heard on a platform. Some would argue that’s a good thing, and this is certainly the case when people have spread hate speech or incited violence. These issues were front and center when a certain former president of the United States was blocked from Twitter and Facebook following the attack on the U.S. Capitol.

What does the future hold for free speech on social media?

It may be a short and disappointing answer, but the truth is that we don’t know what the future holds. There seems to be a consensus that we shouldn’t allow illegal content to be shared on the internet. But it’s easier said than done. Companies, politicians and rights groups all have disagreements about how exactly to do this, and which considerations should be given more weight than others.

Regulating online speech is complicated. But if we leave it up to social media companies and their algorithms, our free speech, and thus our democracy, will suffer. They should use a fraction of their profits to create a complaints system where you can always request human review of a decision to filter content. And, if necessary, anyone should be able to go to a judge to have their case heard.

Help us fight for free speech Donate Social media platforms should not just be held accountable for leaving illegal content online. They should also bear responsibility for taking down legal content. This incentivizes them to create a review system that appropriately considers the free speech of the user. And to ensure that this remains the case, the tech industry must be properly regulated. This ensures that they can continue to grow and prosper without our rights being restricted.

But the truth is, at the moment we don’t really know how their algorithms work. We don’t really know how much material they remove or block, or for what reasons, or how they curate our news feed. To make sure they’re doing their best to protect free speech, all this information has to be available to researchers, authorities and independent watchdogs, like Liberties, who can check on them.

Value knowledge by supporting Liberties All great movements begin with sharing information. Our explainer articles help you understand the most pressing human rights issues, so together we can stand up for what matters. Support us by buying one of our activist authors a cup of coffee. Add your voice to ours. Donate today.

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Acknowledgments

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

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

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Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth

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This Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances regulation of digital platforms with the countervailing fundamental right to freedom of expression, a right that is essential for human dignity, the search for the possible truth, and democracy. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

I. Introduction

Before the internet, few actors could afford to participate in public debate due to the barriers that limited access to its enabling infrastructure, such as television channels and radio frequencies. 1 Digital platforms tore down this gate by creating open online communities for user-generated content, published without editorial control and at no cost. This exponentially increased participation in public discourse and the amount of information available. 2 At the same time, it led to an increase in disinformation campaigns, hate speech, slander, lies, and conspiracy theories used to advance antidemocratic goals. Platforms’ attempts to moderate speech at scale while maximizing engagement and profits have led to an increasingly prominent role for content moderation algorithms that shape who can participate and be heard in online public discourse. These systems play an essential role in the exercise of freedom of expression and in democratic competence and participation in the 21st century.

In this context, this Essay is a critical reflection on the impacts of the digital revolution and of the internet on democracy and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy; it also discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how social media platforms are revolutionizing interpersonal and social communication, and democratizing access to knowledge and information, but also lead to an exponential spread of mis- and disinformation, hate speech and conspiracy theories. Part III proposes a framework for the regulation of digital platforms that seeks to find the right balance with the countervailing fundamental right to freedom of expression. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

II. Democracy and Authoritarian Populism

Constitutional democracy emerged as the predominant ideology of the 20th century, rising above the alternative projects of communism, fascism, Nazism, military regimes, and religious fundamentalism . 3 Democratic constitutionalism centers around two major ideas that merged at the end of the 20th century: constitutionalism , heir of the liberal revolutions in England, America, and France, expressing the ideas of limited power, rule of law, and respect for fundamental rights; 4 and democracy , a regime of popular sovereignty, free and fair elections, and majority rule. 5 In most countries, democracy only truly consolidated throughout the 20th century through universal suffrage guaranteed with the end of restrictions on political participation based on wealth, education, sex, or race. 6

Contemporary democracies are made up of votes, rights, and reasons. They are not limited to fair procedural rules in the electoral process, but demand respect for substantive fundamental rights of all citizens and a permanent public debate that informs and legitimizes political decisions. 7 To ensure protection of these three aspects, most democratic regimes include in their constitutional framework a supreme court or constitutional court with jurisdiction to arbitrate the inevitable tensions that arise between democracy’s popular sovereignty and constitutionalism’s fundamental rights. 8 These courts are, ultimately, the institutions responsible for protecting fundamental rights and the rules of the democratic game against any abuse of power attempted by the majority. Recent experiences in Hungary, Poland, Turkey, Venezuela, and Nicaragua show that when courts fail to fulfill this role, democracy collapses or suffers major setbacks. 9

In recent years, several events have challenged the prevalence of democratic constitutionalism in many parts of the world, in a phenomenon characterized by many as democratic recession. 10 Even consolidated democracies have endured moments of turmoil and institutional discredit, 11 as the world witnessed the rise of an authoritarian, anti-pluralist, and anti-institutional populist wave posing serious threats to democracy.

Populism can be right-wing or left-wing, 12 but the recent wave has been characterized by the prevalence of right-wing extremism, often racist, xenophobic, misogynistic, and homophobic. 13 While in the past the far left was united through Communist International, today it is the far right that has a major global network. 14 The hallmark of right-wing populism is the division of society into “us” (the pure, decent, conservatives) and “them” (the corrupt, liberal, cosmopolitan elites). 15 Authoritarian populism flows from the unfulfilled promises of democracy for opportunities and prosperity for all. 16 Three aspects undergird this democratic frustration: political (people do not feel represented by the existing electoral systems, political leaders, and democratic institutions); social (stagnation, unemployment, and the rise of inequality); and cultural identity (a conservative reaction to the progressive identity agenda of human rights that prevailed in recent decades with the protection of the fundamental rights of women, African descendants, religious minorities, LGBTQ+ communities, indigenous populations, and the environment). 17

Extremist authoritarian populist regimes often adopt similar strategies to capitalize on the political, social, and cultural identity-based frustrations fueling democratic recessions. These tactics include by-pass or co-optation of the intermediary institutions that mediate the interface between the people and the government, such as the legislature, the press, and civil society. They also involve attacks on supreme courts and constitutional courts and attempts to capture them by appointing submissive judges. 18 The rise of social media potentializes these strategies by creating a free and instantaneous channel of direct communication between populists and their supporters. 19 This unmediated interaction facilitates the use of disinformation campaigns, hate speech, slander, lies, and conspiracy theories as political tools to advance antidemocratic goals. The instantaneous nature of these channels is ripe for impulsive reactions, which facilitate verbal attacks by supporters and polarization, feeding back into the populist discourse. These tactics threaten democracy and free and fair elections because they deceive voters and silence the opposition, distorting public debate. Ultimately, this form of communication undermines the values that justify the special protection of freedom of expression to begin with. The “truth decay” and “fact polarization” that result from these efforts discredit institutions and consequently foster distrust in democracy. 20

III. Internet, Social Media, and Freedom of Expression 21

The third industrial revolution, also known as the technological or digital revolution, has shaped our world today. 22 Some of its main features are the massification of personal computers, the universalization of smartphones and, most importantly, the internet. One of the main byproducts of the digital revolution and the internet was the emergence of social media platforms such as Facebook, Instagram, YouTube, TikTok and messaging applications like WhatsApp and Telegram. We live in a world of apps, algorithms, artificial intelligence, and innovation occurring at breakneck speed where nothing seems truly new for very long. This is the background for the narrative that follows.

A. The Impact of the Internet

The internet revolutionized the world of interpersonal and social communication, exponentially expanded access to information and knowledge, and created a public sphere where anyone can express ideas, opinions, and disseminate facts. 23 Before the internet, one’s participation in public debate was dependent upon the professional press, 24 which investigated facts, abided by standards of journalistic ethics, 25 and was liable for damages if it knowingly or recklessly published untruthful information. 26 There was a baseline of editorial control and civil liability over the quality and veracity of what was published in this medium. This does not mean that it was a perfect world. The number of media outlets was, and continues to be, limited in quantity and perspectives; journalistic companies have their own interests, and not all of them distinguish fact from opinion with the necessary care. Still, there was some degree of control over what became public, and there were costs to the publication of overtly hateful or false speech.

The internet, with the emergence of websites, personal blogs, and social media, revolutionized this status quo. It created open, online communities for user-generated texts, images, videos, and links, published without editorial control and at no cost. This advanced participation in public discourse, diversified sources, and exponentially increased available information. 27 It gave a voice to minorities, civil society, politicians, public agents, and digital influencers, and it allowed demands for equality and democracy to acquire global dimensions. This represented a powerful contribution to political dynamism, resistance to authoritarianism, and stimulation of creativity, scientific knowledge, and commercial exchanges. 28 Increasingly, the most relevant political, social, and cultural communications take place on the internet’s unofficial channels.

However, the rise of social media also led to an increase in the dissemination of abusive and criminal speech. 29 While these platforms did not create mis- or disinformation, hate speech, or speech that attacks democracy, the ability to publish freely, with no editorial control and little to no accountability, increased the prevalence of these types of speech and facilitated its use as a political tool by populist leaders. 30 Additionally, and more fundamentally, platform business models compounded the problem through algorithms that moderate and distribute online content. 31

B. The Role of Algorithms

The ability to participate and be heard in online public discourse is currently defined by the content moderation algorithms of a couple major technology companies. Although digital platforms initially presented themselves as neutral media where users could publish freely, they in fact exercise legislative, executive, and judicial functions because they unilaterally define speech rules in their terms and conditions and their algorithms decide how content is distributed and how these rules are applied. 32

Specifically, digital platforms rely on algorithms for two different functions: recommending content and moderating content. 33 First, a fundamental aspect of the service they offer involves curating the content available to provide each user with a personalized experience and increase time spent online. They resort to deep learning algorithms that monitor every action on the platform, draw from user data, and predict what content will keep a specific user engaged and active based on their prior activity or that of similar users. 34 The transition from a world of information scarcity to a world of information abundance generated fierce competition for user attention—the most valuable resource in the Digital Age. 35 The power to modify a person’s information environment has a direct impact on their behavior and beliefs. Because AI systems can track an individual’s online history, they can tailor specific messages to maximize impact. More importantly, they monitor whether and how the user interacts with the tailored message, using this feedback to influence future content targeting and progressively becoming more effective in shaping behavior. 36 Given that humans engage more with content that is polarizing and provocative, these algorithms elicit powerful emotions, including anger. 37 The power to organize online content therefore directly impacts freedom of expression, pluralism, and democracy. 38

In addition to recommendation systems, platforms rely on algorithms for content moderation, the process of classifying content to determine whether it violates community standards. 39 As mentioned, the growth of social media and its use by people around the world allowed for the spread of lies and criminal acts with little cost and almost no accountability, threatening the stability of even long-standing democracies. Inevitably, digital platforms had to enforce terms and conditions defining the norms of their digital community and moderate speech accordingly. 40 But the potentially infinite amount of content published online means that this control cannot be exercised exclusively by humans.

Content moderation algorithms optimize the scanning of published content to identify violations of community standards or terms of service at scale and apply measures ranging from removal to reducing reach or including clarifications or references to alternative information. Platforms often rely on two algorithmic models for content moderation. The first is the reproduction detection model , which uses unique identifiers to catch reproductions of content previously labeled as undesired. 41 The second system, the predictive model , uses machine learning techniques to identify potential illegalities in new and unclassified content. 42 Machine learning is a subtype of artificial intelligence that extracts patterns in training datasets, capable of learning from data without explicit programming to do so. 43 Although helpful, both models have shortcomings.

The reproduction detection model is inefficient for content such as hate speech and disinformation, where the potential for new and different publications is virtually unlimited and users can deliberately make changes to avoid detection. 44 The predictive model is still limited in its ability to address situations to which it has not been exposed in training, primarily because it lacks the human ability to understand nuance and to factor in contextual considerations that influence the meaning of speech. 45 Additionally, machine learning algorithms rely on data collected from the real world and may embed prejudices or preconceptions, leading to asymmetrical applications of the filter. 46 And because the training data sets are so large, it can be hard to audit them for these biases. 47

Despite these limitations, algorithms will continue to be a crucial resource in content moderation given the scale of online activities. 48 In the last two months of 2020 alone, Facebook applied a content moderation measure to 105 million publications, and Instagram to 35 million. 49 YouTube has 500 hours of video uploaded per minute and removed more than 9.3 million videos. 50 In the first half of 2020, Twitter analyzed complaints related to 12.4 million accounts for potential violations of its rules and took action against 1.9 million. 51 This data supports the claim that human moderation is impossible, and that algorithms are a necessary tool to reduce the spread of illicit and harmful content. On the one hand, holding platforms accountable for occasional errors in these systems would create wrong incentives to abandon algorithms in content moderation with the negative consequence of significantly increasing the spread of undesired speech. 52 On the other hand, broad demands for platforms to implement algorithms to optimize content moderation, or laws that impose very short deadlines to respond to removal requests submitted by users, can create excessive pressure for the use of these imprecise systems on a larger scale. Acknowledging the limitations of this technology is fundamental for precise regulation.

C. Some Undesirable Consequences

One of the most striking impacts of this new informational environment is the exponential increase in the scale of social communications and the circulation of news. Around the world, few newspapers, print publications, and radio stations cross the threshold of having even one million subscribers and listeners. This suggests the majority of these publications have a much smaller audience, possibly in the thousands or tens of thousands of people. 53 Television reaches millions of viewers, although diluted among dozens or hundreds of channels. 54 Facebook, on the other hand, has about 3 billion active users. 55 YouTube has 2.5 billion accounts. 56 WhatsApp, more than 2 billion. 57 The numbers are bewildering. However, and as anticipated, just as the digital revolution democratized access to knowledge, information, and public space, it also introduced negative consequences for democracy that must be addressed. Three of them include:

a) the increased circulation of disinformation, deliberate lying, hate speech, conspiracy theories, attacks on democracy, and inauthentic behavior, made possible by recommendation algorithms that optimize for user engagement and content moderation algorithms that are still incapable of adequately identifying undesirable content;

b) the tribalization of life, with the formation of echo chambers where groups speak only to themselves, reinforcing confirmation bias, 58 making speech progressively more radical, and contributing to polarization and intolerance; and

c) a global crisis in the business model of the professional press. Although social media platforms have become one of the main sources of information, they do not produce their own content. They hire engineers, not reporters, and their interest is engagement, not news. 59 Because advertisers’ spending has migrated away from traditional news publications to technological platforms with broader reaches, the press has suffered from a lack of revenue which has forced hundreds of major publications, national and local, to close their doors or reduce their journalist workforce. 60 But a free and strong press is more than just a private business; it is a pillar for an open and free society. It serves a public interest in the dissemination of facts, news, opinions, and ideas, indispensable preconditions for the informed exercise of citizenship. Knowledge and truth—never absolute, but sincerely sought—are essential elements for the functioning of a constitutional democracy. Citizens need to share a minimum set of common objective facts from which to inform their own judgments. If they cannot accept the same facts, public debate becomes impossible. Intolerance and violence are byproducts of the inability to communicate—hence the importance of “knowledge institutions,” such as universities, research entities, and the institutional press. The value of free press for democracy is illustrated by the fact that in different parts of the world, the press is one of the only private businesses specifically referred to throughout constitutions. Despite its importance for society and democracy, surveys reveal a concerning decline in its prestige. 61

In the beginning of the digital revolution, there was a belief that the internet should be a free, open, and unregulated space in the interest of protecting access to the platform and promoting freedom of expression. Over time, concerns emerged, and a consensus gradually grew for the need for internet regulation. Multiple approaches for regulating the internet were proposed, including: (a) economic, through antitrust legislation, consumer protection, fair taxation, and copyright rules; (b) privacy, through laws restricting collection of user data without consent, especially for content targeting; and (c) targeting inauthentic behavior, content control, and platform liability rules. 62

Devising the proper balance between the indispensable preservation of freedom of expression on the one hand, and the repression of illegal content on social media on the other, is one of the most complex issues of our generation. Freedom of expression is a fundamental right incorporated into virtually all contemporary constitutions and, in many countries, is considered a preferential freedom. Several reasons have been advanced for granting freedom of expression special protection, including its roles: (a) in the search for the possible truth 63 in an open and plural society, 64 as explored above in discussing the importance of the institutional press; (b) as an essential element for democracy 65 because it allows the free circulation of ideas, information, and opinions that inform public opinion and voting; and (c) as an essential element of human dignity, 66 allowing the expression of an individual’s personality.

The regulation of digital platforms cannot undermine these values but must instead aim at its protection and strengthening. However, in the digital age, these same values that historically justified the reinforced protection of freedom of expression can now justify its regulation. As U.N. Secretary-General António Guterres thoughtfully stated, “the ability to cause large-scale disinformation and undermine scientifically established facts is an existential risk to humanity.” 67

Two aspects of the internet business model are particularly problematic for the protection of democracy and free expression. The first is that, although access to most technological platforms and applications is free, users pay for access with their privacy. 68 As Lawrence Lessig observed, we watch television, but the internet watches us. 69 Everything each individual does online is monitored and monetized. Data is the modern gold. 70 Thus, those who pay for the data can more efficiently disseminate their message through targeted ads. As previously mentioned, the power to modify a person’s information environment has a direct impact on behavior and beliefs, especially when messages are tailored to maximize impact on a specific individual. 71

The second aspect is that algorithms are programmed to maximize time spent online. This often leads to the amplification of provocative, radical, and aggressive content. This in turn compromises freedom of expression because, by targeting engagement, algorithms sacrifice the search for truth (with the wide circulation of fake news), democracy (with attacks on institutions and defense of coups and authoritarianism), and human dignity (with offenses, threats, racism, and others). The pursuit of attention and engagement for revenue is not always compatible with the values that underlie the protection of freedom of expression.

IV. A Framework for the Regulation of Social Media

Platform regulation models can be broadly classified into three categories: (a) state or government regulation, through legislation and rules drawing a compulsory, encompassing framework; (b) self-regulation, through rules drafted by platforms themselves and materialized in their terms of use; and (c) regulated self-regulation or coregulation, through standards fixed by the state but which grant platform flexibility in materializing and implementing them. This Essay argues for the third model, with a combination of governmental and private responsibilities. Compliance should be overseen by an independent committee, with the minority of its representatives coming from the government, and the majority coming from the business sector, academia, technology entities, users, and civil society.

The regulatory framework should aim to reduce the asymmetry of information between platforms and users, safeguard the fundamental right to freedom of expression from undue private or state interventions, and protect and strengthen democracy. The current technical limitations of content moderation algorithms explored above and normal substantive disagreement about what content should be considered illegal or harmful suggest that an ideal regulatory model should optimize the balance between the fundamental rights of users and platforms, recognizing that there will always be cases where consensus is unachievable. The focus of regulation should be the development of adequate procedures for content moderation, capable of minimizing errors and legitimizing decisions even when one disagrees with the substantive result. 72 With these premises as background, the proposal for regulation formulated here is divided into three levels: (a) the appropriate intermediary liability model for user-generated content; (b) procedural duties for content moderation; and (c) minimum duties to moderate content that represents concrete threats to democracy and/or freedom of expression itself.

A. Intermediary Liability for User-Generated Content

There are three main regimes for platform liability for third-party content. In strict liability models, platforms are held responsible for all user-generated posts. 73 Since platforms have limited editorial control over what is posted and limited human oversight over the millions of posts made daily, this would be a potentially destructive regime. In knowledge-based liability models, platform liability arises if they do not act to remove content after an extrajudicial request from users—this is also known as a “notice-and-takedown” system. 74 Finally, a third model would make platforms liable for user-generated content only in cases of noncompliance with a court order mandating content removal. This latter model was adopted in Brazil with the Civil Framework for the Internet (Marco Civil da Internet). 75 The only exception in Brazilian legislation to this general rule is revenge porn: if there is a violation of intimacy resulting from the nonconsensual disclosure of images, videos, or other materials containing private nudity or private sexual acts, extrajudicial notification is sufficient to create an obligation for content removal under penalty of liability. 76

In our view, the Brazilian model is the one that most adequately balances the fundamental rights involved. As mentioned, in the most complex cases concerning freedom of expression, people will disagree on the legality of speech. Rules holding platforms accountable for not removing content after mere user notification create incentives for over-removal of any potentially controversial content, excessively restricting users’ freedom of expression. If the state threatens to hold digital platforms accountable if it disagrees with their assessment, companies will have the incentive to remove all content that could potentially be considered illicit by courts to avoid liability. 77

Nonetheless, this liability regime should coexist with a broader regulatory structure imposing principles, limits, and duties on content moderation by digital platforms, both to increase the legitimacy of platforms’ application of their own terms and conditions and to minimize the potentially devastating impacts of illicit or harmful speech.

B. Standards for Proactive Content Moderation

Platforms have free enterprise and freedom of expression rights to set their own rules and decide the kind of environment they want to create, as well as to moderate harmful content that could drive users away. However, because these content moderation algorithms are the new governors of the public sphere, 78 and because they define the ability to participate and be heard in online public discourse, platforms should abide by minimum procedural duties of transparency and auditing, due process, and fairness.

1. Transparency and Auditing

Transparency and auditing measures serve mainly to ensure that platforms are accountable for content moderation decisions and for the impacts of their algorithms. They provide users with greater understanding and knowledge about the extent to which platforms regulate speech, and they provide oversight bodies and researchers with information to understand the threats of digital services and the role of platforms in amplifying or minimizing them.

Driven by demands from civil society, several digital platforms already publish transparency reports. 79 However, the lack of binding standards means that these reports have significant gaps, no independent verification of the information provided, 80 and no standardization across platforms, preventing comparative analysis. 81 In this context, regulatory initiatives that impose minimum requirements and standards are crucial to make oversight more effective. On the other hand, overly broad transparency mandates may force platforms to adopt simpler content moderation rules to reduce costs, which could negatively impact the accuracy of content moderation or the quality of the user experience. 82 A tiered approach to transparency, where certain information is public and certain information is limited to oversight bodies or previously qualified researchers, ensures adequate protection of countervailing interests, such as user privacy and business confidentiality. 83 The Digital Services Act, 84 recently passed in the European Union, contains robust transparency provisions that generally align with these considerations. 85

The information that should be publicly provided includes clear and unambiguous terms of use, the options available to address violations (such as removal, amplification reduction, clarifications, and account suspension) and the division of labor between algorithms and humans. More importantly, public transparency reports should include information on the accuracy of automated moderation measures and the number of content moderation actions broken down by type (such as removal, blocking, and account deletion). 86 There must also be transparency obligations to researchers, giving them access to crucial information and statistics, including to the content analyzed for the content moderation decisions. 87

Although valuable, transparency requirements are insufficient in promoting accountability because they rely on users and researchers to actively monitor platform conduct and presuppose that they have the power to draw attention to flaws and promote changes. 88 Legally mandated third-party algorithmic auditing is therefore an important complement to ensure that these models satisfy legal, ethical, and safety standards and to elucidate the embedded value tradeoffs, such as between user safety and freedom of expression. 89 As a starting point, algorithm audits should consider matters such as how accurately they perform, any potential bias or discrimination incorporated in the data, and to what extent the internal mechanics are explainable to humans. 90 The Digital Services Act contains a similar proposal. 91

The market for algorithmic auditing is still emergent and replete with uncertainty. In attempting to navigate this scenario, regulators should: (a) define how often the audits should happen; (b) develop standards and best practices for auditing procedures; (c) mandate specific disclosure obligations so auditors have access to the required data; and (d) define how identified harms should be addressed. 92

2. Due Process and Fairness

To ensure due process, platforms must inform users affected by content moderation decisions of the allegedly violated provision of the terms of use, as well as offer an internal system of appeals against these decisions. Platforms must also create systems that allow for the substantiated denunciation of content or accounts by other users, and notify reporting users of the decision taken.

As for fairness, platforms should ensure that the rules are applied equally to all users. Although it is reasonable to suppose that platforms may adopt different criteria for public persons or information of public interest, these exceptions must be clear in the terms of use. This issue has recently been the subject of controversy between the Facebook Oversight Board and the company. 93

Due to the enormous amount of content published on the platforms and the inevitability of using automated mechanisms for content moderation, platforms should not be held accountable for a violation of these duties in specific cases, but only when the analysis reveals a systemic failure to comply. 94

C. Minimum Duties to Moderate Illicit Content

The regulatory framework should also contain specific obligations to address certain types of especially harmful speech. The following categories are considered by the authors to fall within this group: disinformation, hate speech, anti-democratic attacks, cyberbullying, terrorism, and child pornography. Admittedly, defining and consensually identifying the speech included in these categories—except in the case of child pornography 95 —is a complex and largely subjective task. Precisely for this reason, platforms should be free to define how the concepts will be operationalized, as long as they guide definitions by international human rights parameters and in a transparent manner. This does not mean that all platforms will reach the same definitions nor the same substantive results in concrete cases, but this should not be considered a flaw in the system, since the plurality of rules promotes freedom of expression. The obligation to observe international human rights parameters reduces the discretion of companies, while allowing for the diversity of policies among them. After defining these categories, platforms must establish mechanisms that allow users to report violations.

In addition, platforms should develop mechanisms to address coordinated inauthentic behaviors, which involve the use of automated systems or deceitful means to artificially amplify false or dangerous messages by using bots, fake profiles, trolls, and provocateurs. 96 For example, if a person publishes a post for his twenty followers saying that kerosene oil is good for curing COVID-19, the negative impact of this misinformation is limited. However, if that message is amplified to thousands of users, a greater public health issue arises. Or, in another example, if the false message that an election was rigged reaches millions of people, there is a democratic risk due to the loss of institutional credibility.

The role of oversight bodies should be to verify that platforms have adopted terms of use that prohibit the sharing of these categories of speech and ensure that, systemically, the recommendation and content moderation systems are trained to moderate this content.

V. Conclusion

The World Wide Web has provided billions of people with access to knowledge, information, and the public space, changing the course of history. However, the misuse of the internet and social media poses serious threats to democracy and fundamental rights. Some degree of regulation has become necessary to confront inauthentic behavior and illegitimate content. It is essential, however, to act with transparency, proportionality, and adequate procedures, so that pluralism, diversity, and freedom of expression are preserved.

In addition to the importance of regulatory action, the responsibility for the preservation of the internet as a healthy public sphere also lies with citizens. Media education and user awareness are fundamental steps for the creation of a free but positive and constructive environment on the internet. Citizens should be conscious that social media can be unfair, perverse, and can violate fundamental rights and basic rules of democracy. They must be attentive not to uncritically pass on all information received. Alongside states, regulators, and tech companies, citizens are also an important force to address these threats. In Jonathan Haidt’s words, “[w]hen our public square is governed by mob dynamics unrestrained by due process, we don’t get justice and inclusion; we get a society that ignores context, proportionality, mercy, and truth.” 97

• 1 Tim Wu, Is the First Amendment Obsolete? , in The Perilous Public Square 15 (David E. Pozen ed., 2020).
• 2 Jack M. Balkin, Free Speech is a Triangle , 118 Colum. L. Rev. 2011, 2019 (2018).
• 3 Luís Roberto Barroso, O Constitucionalismo Democrático ou Neoconstitucionalismo como ideologia vitoriosa do século XX , 4 Revista Publicum 14, 14 (2018).
• 4 Id. at 16.
• 7 Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate xii (2006); Ronald Dworkin, Taking Rights Seriously 181 (1977).
• 8 Barroso, supra note 3, at 16.
• 9 Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts i (2015).
• 10 Larry Diamond, Facing up to the Democratic Recession , 26 J. Democracy 141 (2015). Other scholars have referred to the same phenomenon using other terms, such as democratic retrogression, abusive constitutionalism, competitive authoritarianism, illiberal democracy, and autocratic legalism. See, e.g. , Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy , 65 UCLA L. Rev. 91 (2018); David Landau, Abusive Constitutionalism , 47 U.C. Davis L. Rev. 189 (2013); Kim Lane Scheppele, Autocratic Legalism , 85 U. Chi. L. Rev. 545 (2018).
• 11 Dan Balz, A Year After Jan. 6, Are the Guardrails that Protect Democracy Real or Illusory? , Wash. Post (Jan. 6, 2022), https://perma.cc/633Z-A9AJ; Brexit: Reaction from Around the UK , BBC News (June 24, 2016), https://perma.cc/JHM3-WD7A.
• 12 Cas Mudde, The Populist Zeitgeist , 39 Gov’t & Opposition 541, 549 (2004).
• 13 See generally Mohammed Sinan Siyech, An Introduction to Right-Wing Extremism in India , 33 New Eng. J. Pub. Pol’y 1 (2021) (discussing right-wing extremism in India). See also Eviane Leidig, Hindutva as a Variant of Right-Wing Extremism , 54 Patterns of Prejudice 215 (2020) (tracing the history of “Hindutva”—defined as “an ideology that encompasses a wide range of forms, from violent, paramilitary fringe groups, to organizations that advocate the restoration of Hindu ‘culture’, to mainstream political parties”—and finding that it has become mainstream since 2014 under Modi); Ariel Goldstein, Brazil Leads the Third Wave of the Latin American Far Right , Ctr. for Rsch. on Extremism (Mar. 1, 2021), https://perma.cc/4PCT-NLQJ (discussing right-wing extremism in Brazil under Bolsonaro); Seth G. Jones, The Rise of Far-Right Extremism in the United States , Ctr. for Strategic & Int’l Stud. (Nov. 2018), https://perma.cc/983S-JUA7 (discussing right-wing extremism in the U.S. under Trump).
• 14 Sergio Fausto, O Desafio Democrático [The Democratic Challenge], Piauí (Aug. 2022), https://perma.cc/474A-3849.
• 15 Jan-Werner Muller, Populism and Constitutionalism , in The Oxford Handbook of Populism 590 (Cristóbal Rovira Kaltwasser et al. eds., 2017).
• 16 Ming-Sung Kuo, Against Instantaneous Democracy , 17 Int’l J. Const. L. 554, 558–59 (2019); see also Digital Populism , Eur. Ctr. for Populism Stud., https://perma.cc/D7EV-48MV.
• 17 Luís Roberto Barroso, Technological Revolution, Democratic Recession and Climate Change: The Limits of Law in a Changing World , 18 Int’l J. Const. L. 334, 349 (2020).
• 18 For the use of social media, see Sven Engesser et al., Populism and Social Media: How Politicians Spread a Fragmented Ideology , 20 Info. Commc’n & Soc’y 1109 (2017). For attacks on the press, see WPFD 2021: Attacks on Press Freedom Growing Bolder Amid Rising Authoritarianism , Int’l Press Inst. (Apr. 30, 2021), https://perma.cc/SGN9-55A8. For attacks on the judiciary, see Michael Dichio & Igor Logvinenko, Authoritarian Populism, Courts and Democratic Erosion , Just Sec. (Feb. 11, 2021), https://perma.cc/WZ6J-YG49.
• 19 Kuo, supra note 16, at 558–59; see also Digital Populism , supra note 16.
• 20 Vicki C. Jackson, Knowledge Institutions in Constitutional Democracy: Reflections on “the Press” , 15 J. Media L. 275 (2022).
• 21 Many of the ideas and information on this topic were collected in Luna van Brussel Barroso, Liberdade de Expressão e Democracia na Era Digital: O impacto das mídias sociais no mundo contemporâneo [Freedom of Expression and Democracy in the Digital Era: The Impact of Social Media in the Contemporary World] (2022), which was recently published in Brazil.
• 22 The first industrial revolution is marked by the use of steam as a source of energy in the middle of the 18th century. The second started with the use of electricity and the invention of the internal combustion engine at the turn of the 19th to the 20th century. There are already talks of the fourth industrial revolution as a product of the fusion of technologies that blurs the boundaries among the physical, digital, and biological spheres. See generally Klaus Schwab, The Fourth Industrial Revolution (2017).
• 23 Gregory P. Magarian, The Internet and Social Media , in The Oxford Handbook of Freedom of Speech 350, 351–52 (Adrienne Stone & Frederick Schauer eds., 2021).
• 24 Wu, supra note 1, at 15.
• 25 Journalistic ethics include distinguishing fact from opinion, verifying the veracity of what is published, having no self-interest in the matter being reported, listening to the other side, and rectifying mistakes. For an example of an international journalistic ethics charter, see Global Charter of Ethics for Journalists , Int’l Fed’n of Journalists (June 12, 2019), https://perma.cc/7A2C-JD2S.
• 26 See, e.g. , New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
• 27 Balkin, supra note 2, at 2018.
• 28 Magarian, supra note 23, at 351–52.
• 29 Wu, supra note 1, at 15.
• 30 Magarian, supra note 23, at 357–60.
• 31 Niva Elkin-Koren & Maayan Perel, Speech Contestation by Design: Democratizing Speech Governance by AI , 50 Fla. State U. L. Rev. (forthcoming 2023).
• 32 Thomas E. Kadri & Kate Klonick, Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech , 93 S. Cal. L. Rev. 37, 94 (2019).
• 33 Elkin-Koren & Perel, supra note 31.
• 34 Chris Meserole, How Do Recommender Systems Work on Digital Platforms? , Brookings Inst.(Sept. 21, 2022), https://perma.cc/H53K-SENM.
• 35 Kris Shaffer, Data versus Democracy: How Big Data Algorithms Shape Opinions and Alter the Course of History xi–xv (2019).
• 36 See generally Stuart Russell, Human Compatible: Artificial Intelligence and the Problem of Control (2019).
• 37 Shaffer, supra note 35, at xi–xv.
• 38 More recently, with the advance of neuroscience, platforms have sharpened their ability to manipulate and change our emotions, feelings and, consequently, our behavior in accordance not with our own interests, but with theirs (or of those who they sell this service to). Kaveh Waddell, Advertisers Want to Mine Your Brain , Axios (June 4, 2019), https://perma.cc/EU85-85WX. In this context, there is already talk of a new fundamental right to cognitive liberty, mental self-determination, or the right to free will. Id .
• 39 Content moderation refers to “systems that classify user generated content based on either matching or prediction, leading to a decision and governance outcome (e.g. removal, geoblocking, account takedown).” Robert Gorwa, Reuben Binns & Christian Katzenbach, Algorithmic Content Moderation: Technical and Political Challenges in the Automation of Platform Governance , 7 Big Data & Soc’y 1, 3 (2020).
• 40 Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation , 51 U.C. Davis L. Rev. 1149, 1183 (2018).
• 41 See Carey Shenkman, Dhanaraj Thakur & Emma Llansó, Do You See What I See? Capabilities and Limits of Automated Multimedia Content Analysis 13–16 (May 2021),https://perma.cc/J9MP-7PQ8.
• 42 See id. at 17–21.
• 43 See Michael Wooldridge, A Brief History of Artificial Intelligence: What It Is, Where We Are, and Where We Are Going 63 (2021).

Perceptual hashing has been the primary technology utilized to mitigate the spread of CSAM, since the same materials are often repeatedly shared, and databases of offending content are maintained by institutions like the National Center for Missing and Exploited Children (NCMEC) and its international analogue, the International Centre for Missing & Exploited Children (ICMEC).

• 45 Natural language understanding is undermined by language ambiguity, contextual dependence of words of non-immediate proximity, references, metaphors, and general semantics rules. See Erik J. Larson, The Myth of Artificial Intelligence: Why Computers Can’t Think the Way We Do 52–55 (2021). Language comprehension in fact requires unlimited common-sense knowledge about the actual world, which humans possess and is impossible to code. Id . A case decided by Facebook’s Oversight Board illustrates the point: the company’s predictive filter for combatting pornography removed images from a breast cancer awareness campaign, a clearly legitimate content not meant to be targeted by the algorithm. See Breast Cancer Symptoms and Nudity , Oversight Bd. (2020), https://perma.cc/U9A5-TTTJ. However, based on prior training, the algorithm removed the publication because it detected pornography and was unable to factor the contextual consideration that this was a legitimate health campaign. Id .
• 46 See generally Adriano Koshiyama, Emre Kazim & Philip Treleaven, Algorithm Auditing: Managing the Legal, Ethical, and Technological Risks of Artificial Intelligence, Machine Learning, and Associated Algorithms , 55 Computer 40 (2022).
• 47 Elkin-Koren & Perel, supra note 31.
• 48 Evelyn Douek, Governing Online Speech: From “Posts-as-Trumps” to Proportionality and Probability , 121 Colum. L. Rev. 759, 791 (2021).
• 53 See Martha Minow, Saving the Press: Why the Constitution Calls for Government Action to Preserve Freedom of Speech 20 (2021). For example, the best-selling newspaper in the world, The New York Times , ended the year 2022 with around 10 million subscribers across digital and print. Katie Robertson, The New York Times Company Adds 180,000 Digital Subscribers , N.Y. Times (Nov. 2, 2022), https://perma.cc/93PF-TKC5. The Economist magazine had approximately 1.2 million subscribers in 2022. The Economist Group, Annual Report 2022 24 (2022), https://perma.cc/9HQQ-F7W2. Around the world, publications that reach one million subscribers are rare. These Are the Most Popular Paid Subscription News Websites , World Econ. F. (Apr. 29, 2021), https://perma.cc/L2MK-VPNX.
• 54 Lawrence Lessig, They Don’t Represent Us: Reclaiming Our Democracy 105 (2019).
• 55 Essential Facebook Statistics and Trends for 2023 , Datareportal (Feb. 19, 2023), https://perma.cc/UH33-JHUQ.
• 56 YouTube User Statistics 2023 , Glob. Media Insight (Feb. 27, 2023), https://perma.cc/3H4Y-H83V.
• 57 Brian Dean, WhatsApp 2022 User Statistics: How Many People Use WhatsApp , Backlinko (Jan. 5, 2022), https://perma.cc/S8JX-S7HN.
• 58 Confirmation bias, the tendency to seek out and favor information that reinforces one’s existing beliefs, presents an obstacle to critical thinking. Sachin Modgil et al., A Confirmation Bias View on Social Media Induced Polarisation During COVID-19 , Info. Sys. Frontiers (Nov. 20, 2021).
• 59 Minow, supra note 53, at 2.
• 60 Id. at 3, 11.
• 61 On the importance of the role of the press as an institution of public interest and its “crucial relationship” with democracy, see id. at 35. On the press as a “knowledge institution,” the idea of “institutional press,” and data on the loss of prestige by newspapers and television stations, see Jackson, supra note 20, at 4–5.
• 62 See , e.g. , Jack M. Balkin, How to Regulate (and Not Regulate) Social Media , 1 J. Free Speech L. 71, 89–96 (2021).
• 63 By possible truth we mean that not all claims, opinions and beliefs can be ascertained as true or false. Objective truths are factual and can thus be proven even when controversial—for example, climate change and the effectiveness of vaccines. Subjective truths, on the other hand, derive from individual normative, religious, philosophical, and political views. In a pluralistic world, any conception of freedom of expression must protect individual subjective beliefs.
• 64 Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595, 595 (May 2011).
• 66 Steven J. Heyman, Free Speech and Human Dignity 2 (2008).
• 67 A Global Dialogue to Guide Regulation Worldwide , UNESCO (Feb. 23, 2023), https://perma.cc/ALK8-HTG3.
• 68 Can We Fix What’s Wrong with Social Media? , Yale L. Sch. News (Aug. 3, 2022), https://perma.cc/MN58-2EVK.
• 69 Lessig, supra note 54, at 105.
• 71 See supra Part III.B.
• 72 Doeuk, supra note 48, at 804–13; see also John Bowers & Jonathan Zittrain, Answering Impossible Questions: Content Governance in an Age of Disinformation , Harv. Kennedy Sch. Misinformation Rev. (Jan. 14, 2020), https://perma.cc/R7WW-8MQX.
• 73 Daphne Keller, Systemic Duties of Care and Intermediary Liability , Ctr. for Internet & Soc’y Blog (May 28, 2020), https://perma.cc/25GU-URGT.
• 75 Decreto No. 12.965, de 23 de abril de 2014, Diário Oficial da União [D.O.U.] de 4.14.2014 (Braz.) art. 19. In order to ensure freedom of expression and prevent censorship, providers of internet applications can only be civilly liable for damages resulting from content generated by third parties if, after specific court order, they do not make arrangements to, in the scope and technical limits of their service and within the indicated time, make unavailable the content identified as infringing, otherwise subject to the applicable legal provisions. Id .
• 76 Id. art. 21. The internet application provider that provides content generated by third parties will be held liable for the violation of intimacy resulting from the disclosure, without authorization of its participants, of images, videos, or other materials containing nude scenes or private sexual acts when, upon receipt of notification by the participant or its legal representative, fail to diligently promote, within the scope and technical limits of its service, the unavailability of this content. Id .
• 77 Balkin, supra note 2, at 2017.
• 78 Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech , 131 Harv. L. Rev. 1598, 1603 (2018).
• 79 Transparency Reporting Index, Access Now (July 2021), https://perma.cc/2TSL-2KLD (cataloguing transparency reporting from companies around the world).
• 80 Hum. Rts. Comm., Rep. of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ¶¶ 63–66, U.N. Doc A/HRC/32/35 (2016).
• 81 Paddy Leerssen, The Soap Box as a Black Box: Regulating Transparency in Social Media Recommender Systems , 11 Eur. J. L. & Tech. (2020).
• 82 Daphne Keller, Some Humility About Transparency , Ctr. for Internet & Soc’y Blog (Mar. 19, 2021), https://perma.cc/4Y85-BATA.
• 83 Mark MacCarthy, Transparency Requirements for Digital Social Media Platforms: Recommendations for Policy Makers and Industry , Transatlantic Working Grp. (Feb. 12, 2020).
• 84 2022 O.J. (L 277) 1 [hereinafter DSA].
• 85 The DSA was approved by the European Parliament on July 5, 2022, and on October 4, 2022, the European Council gave its final acquiescence to the regulation. Digital Services: Landmark Rules Adopted for a Safer, Open Online Environment , Eur. Parliament (July 5, 2022), https://perma.cc/BZP5-V2B2. The DSA increases transparency and accountability of platforms, by providing, for example, for the obligation of “clear information on content moderation or the use of algorithms for recommending content (so-called recommender systems); users will be able to challenge content moderation decisions.” Id .
• 86 MacCarthy, supra note 83, 19–24.
• 87 To this end, American legislators recently introduced a U.S. Congressional bill that proposes a model for conducting research on the impacts of digital communications in a way that protects user privacy. See Platform Accountability and Transparency Act, S. 5339, 117th Congress (2022). The project mandates that digital platforms share data with researchers previously authorized by the Federal Trade Commission and publicly disclose certain data about content, algorithms, and advertising. Id .
• 88 Yifat Nahmias & Maayan Perel, The Oversight of Content Moderation by AI: Impact Assessment and Their Limitations , 58 Harv. J. on Legis. 145, 154–57 (2021).
• 89 Auditing Algorithms: The Existing Landscape, Role of Regulator and Future Outlook , Digit. Regul. Coop. F. (Sept. 23, 2022), https://perma.cc/7N6W-JNCW.
• 90 See generally Koshiyama et al., supra note 46.
• 91 In Article 37, the DSA provides that digital platforms of a certain size should be accountable, through annual independent auditing, for compliance with the obligations set forth in the Regulation and with any commitment undertaken pursuant to codes of conduct and crisis protocols.
• 92 Digit. Regul. Coop. F., supra note 89.
• 93 In a transparency report published at the end of its first year of operation, the Oversight Board highlighted the inadequacy of the explanations presented by Meta on the operation of a system known as cross-check, which apparently gave some users greater freedom on the platform. In January 2022, Meta explained that the cross-check system grants an additional degree of review to certain content that internal systems mark as violating the platform’s terms of use. Meta submitted a query to the Board on how to improve the functioning of this system and the Board made relevant recommendations. See Oversight Board Published Policy Advisory Opinion on Meta’s Cross-Check Program , Oversight Bd. (Dec. 2022), https://perma.cc/87Z5-L759.
• 94 Evelyn Douek, Content Moderation as Systems Thinking , 136 Harv. L. Rev. 526, 602–03 (2022).
• 95 The illicit nature of child pornography is objectively apprehended and does not implicate the same subjective considerations that the other referenced categories entail. Not surprisingly, several databases have been created to facilitate the moderation of this content. See Ofcom, Overview of Perceptual Hashing Technology 14 (Nov. 22, 2022), https://perma.cc/EJ45-B76X (“Several hash databases to support the detection of known CSAM exist, e.g. the National Center for Missing and Exploited Children (NCMEC) hash database, the Internet Watch Foundation (IWF) hash list and the International Child Sexual Exploitation (ICSE) hash database.”).
• 97 Jonathan Haidt, Why the Past 10 Years of American Life Have Been Uniquely Stupid , Atlantic (Apr. 11, 2022), https://perma.cc/2NXD-32VM.

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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 on Social Media

This essay will discuss the concept of freedom of speech in the context of social media. It will explore the balance between free expression and the need for content moderation, legal implications, and the role of social media platforms in regulating speech. You can also find more related free essay samples at PapersOwl about Freedom.

How it works

Social media and freedom of speech have taken over the world. People read on the news every day about people being punished for what they post on social media. To what limit should people be punished for what they post? When people post online, everyone can see the material. It does not matter if the account is private. People should face consequences for their actions on social media if their post is offensive, containing work information, or includes a provocative photo, posting an offensive post, comment, or photo on social media should result in some type of punishment.

One type of post that should result in punishment in consequences for the poster is offensive material. According to an article, “Words can have many emotions, which is dangerous because it could affect people in so many ways, it could affect a person’s actions” (Arthur 2). When himself/herself tells someone, he/she is ugly, and they should do something to harm themselves, then people need to be punished. As one article explains, “The Department of Justice says nearly 850,000 people, who are mostly women, are cyberstalked and receive sexual harassment. 40 percent of women are in a violent relationship online and in person” (Sweeny 1).

Women often engage in abusive relationships, whether that relationship is sexual abuse, mental abuse, or physical abuse. Posting anything offensive toward he/she needs to be punished. Posting about your job in any type of negative way should result in some type of punishment. One article state that, “Making your voice heard and talking about race, religion, and politics are two different things” (Price 1).

When people have a job and want to make his/her voice heard him/her need to go to their boss. People do not need to post all over social media about what him/her wants to change about his/her job. The only thing that is going to change in that scenario is him/her losing his/her job. In this article, “What people post on social media not only reflects him/her but his/her employer also” (Price 1).

When people post something inappropriate, it reflects on an employer because it is like, does his/her employer condone that type of behavior in the work area? In some cases, if customers see inappropriate things on social media that offend himself/herself, and nothing is said to the people who posted, it will make the business lose those customers. When posting on social media people need to be more careful, people need to keep their opinions to himself/herself, it may hurt him/her in the long run.

When posting a provocative photo on social media, people can end up with serious jail time. This article explains, “When people’s photos and private information is leaked there should be certain consequences” (Sweeny 1).

When people’s personal information is leaked it could have a dramatic effect in, his/her life. This article explains, “It is not fair to single out a victim because of their gender, race, or sexuality” (Sweeny 5). Women are often sexually assaulted, in most articles’ women are often criticized for provocative photos and explained that the women are “asking for it”.

When people share private information, they are sharing people’s secrets, which is also considered an invasion of privacy. Posting on social media is never private.

When people post online, they are posting for the world to see, if people share things that he/she friends posted, then all of he/she friends can see the post. People’s account may be private, but accounts are never private.

If people go for a job interview and he/she has pictures with his/her friends from the past weekend drunk at a bar, depending on the job, the job is not going to hire he/she for the position. People should face consequences their actions on social media if their post is offensive, containing work information, or includes a provocative photo, posting an offensive post, comment, or photo on social media should result in some type of punishment.

Cite this page

Freedom of Speech on Social Media. (2022, Feb 09). Retrieved from https://papersowl.com/examples/freedom-of-speech-on-social-media/

"Freedom of Speech on Social Media." PapersOwl.com , 9 Feb 2022, https://papersowl.com/examples/freedom-of-speech-on-social-media/

PapersOwl.com. (2022). Freedom of Speech on Social Media . [Online]. Available at: https://papersowl.com/examples/freedom-of-speech-on-social-media/ [Accessed: 30 May. 2024]

"Freedom of Speech on Social Media." PapersOwl.com, Feb 09, 2022. Accessed May 30, 2024. https://papersowl.com/examples/freedom-of-speech-on-social-media/

"Freedom of Speech on Social Media," PapersOwl.com , 09-Feb-2022. [Online]. Available: https://papersowl.com/examples/freedom-of-speech-on-social-media/. [Accessed: 30-May-2024]

PapersOwl.com. (2022). Freedom of Speech on Social Media . [Online]. Available at: https://papersowl.com/examples/freedom-of-speech-on-social-media/ [Accessed: 30-May-2024]

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Supreme Court tackles social media and free speech

Nina Totenberg

In a major First Amendment case, the Supreme Court heard arguments on the federal government's ability to combat what it sees as false, misleading or dangerous information online.

Copyright © 2024 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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One of the most fiercely debated issues of the current era is what to do about “bad” speech on the internet, primarily speech on social media platforms such as Facebook and Twitter. “Bad” speech encompasses a range of problematic communications—hate speech, disinformation and propaganda campaigns, encouragement of and incitement to violence, limited exposure to ideas one disagrees with or that compete with preexisting beliefs, and so on. Because the internet is inherently a global communications system, “bad” speech can arise from foreign as well as domestic sources. No one doubts that these kinds of very harmful expression have existed forever, but the premise of the current debate is that the ubiquity and structure of this newest and most powerful communications technology magnifies these harms exponentially beyond anything we have encountered before. Some argue that, if it is left unchecked, the very existence of democracy is at risk.

The appropriate remedies for this state of affairs are highly uncertain, and this uncertainty is complicated by the fact that some of these forms of “bad” speech are ordinarily protected by the First Amendment. Yet the stakes are very high in regard to how we answer the question because it is now evident that much of public discourse about public issues has migrated onto this new technology and is likely to continue that course into the future.

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15.4 Censorship and Freedom of Speech

Learning objectives.

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hay’s Code affected 20th-century American mass media.

Figure 15.3

Attempts to censor material, such as banning books, typically attract a great deal of controversy and debate.

Timberland Regional Library – Banned Books Display At The Lacey Library – CC BY-NC-ND 2.0.

To fully understand the issues of censorship and freedom of speech and how they apply to modern media, we must first explore the terms themselves. Censorship is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press (Case Summaries).” Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (Federal Communications Commission). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (Federal Communications Commission).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one.

There is a formalized process for deciding what material falls into which category. First, the FCC relies on television audiences to alert the agency of potentially controversial material that may require classification. The commission asks the public to file a complaint via letter, e-mail, fax, telephone, or the agency’s website, including the station, the community, and the date and time of the broadcast. The complaint should “contain enough detail about the material broadcast that the FCC can understand the exact words and language used (Federal Communications Commission).” Citizens are also allowed to submit tapes or transcripts of the aired material. Upon receiving a complaint, the FCC logs it in a database, which a staff member then accesses to perform an initial review. If necessary, the agency may contact either the station licensee or the individual who filed the complaint for further information.

Once the FCC has conducted a thorough investigation, it determines a final classification for the material. In the case of profane or indecent material, the agency may take further actions, including possibly fining the network or station (Federal Communications Commission). If the material is classified as obscene, the FCC will instead refer the matter to the U.S. Department of Justice, which has the authority to criminally prosecute the media outlet. If convicted in court, violators can be subject to criminal fines and/or imprisonment (Federal Communications Commission).

Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Table 15.1 FCC Indecency Complaints and NALs: 2000–2005

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema (Film Reference).” The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as Intolerance (1916) and The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity (Film Reference).”

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. As you read in Chapter 8 “Movies” , this changed during the 1930s with the implementation of the Hays Code. Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions (Film Reference).” Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship. The code displayed the motion picture industry’s commitment to the public, stating:

Motion picture producers recognize the high trust and confidence which have been placed in them by the people of the world and which have made motion pictures a universal form of entertainment…. Hence, though regarding motion pictures primarily as entertainment without any explicit purposes of teaching or propaganda, they know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking (Arts Reformation).

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Arts Reformation). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing (Arts Reformation).”

Figure 15.4

As the chairman of the Motion Picture Producers and Distributors Association, Will Hays oversaw the creation of the industry’s self-censoring Hays Code.

Wikimedia Commons – public domain.

As television grew in popularity during the mid-1900s, the strict code placed on the film industry spread to other forms of visual media. Many early sitcoms, for example, showed married couples sleeping in separate twin beds to avoid suggesting sexual relations.

By the end of the 1940s, the MPPDA had begun to relax the rigid regulations of the Hays Code. Propelled by the changing moral standards of the 1950s and 1960s, this led to a gradual reintroduction of violence and sex into mass media.

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films Indiana Jones and the Temple of Doom and Gremlins both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include TV-Y (all children), TV-Y7 (children ages 7 and up), TV-Y7-FV (older children—fantasy violence), TV-G (general audience), TV-PG (parental guidance suggested), TV-14 (parents strongly cautioned), and TV-MA (mature audiences only).

Table 15.2 Television Ratings System

Source: http://www.tvguidelines.org/ratings.htm

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings include EC (early childhood), E (everyone), E 10+ (ages 10 and older), T (teen), M (mature), and AO (adults only).

Table 15.3 Video Game Ratings System

Source: http://www.esrb.org/ratings/ratings_guide.jsp

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world, Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Awareness). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds (Media Awareness).” Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Takeaways

• The U.S. Government devised the three-prong test to determine if material can be considered “obscene.” The FCC applies these guidelines to determine whether broadcast content can be classified as profane, indecent, or obscene.
• Established during the 1930s, the Hays Code placed strict regulations on film, requiring that filmmakers avoid portraying violence and sex in films.
• After the decline of the Hays Code during the 1960s, the MPAA introduced a self-policed film ratings system. This system later inspired similar ratings for television and video game content.

Look over the MPAA’s explanation of each film rating online at http://www.mpaa.org/ratings/what-each-rating-means . View a film with these requirements in mind and think about how the rating was selected. Then answer the following short-answer questions. Each response should be a minimum of one paragraph.

• Would this material be considered “obscene” under the Hays Code criteria? Would it be considered obscene under the FCC’s three-prong test? Explain why or why not. How would the film be different if it were released in accordance to the guidelines of the Hays Code?
• Do you agree with the rating your chosen film was given? Why or why not?

Arts Reformation, “The Motion Picture Production Code of 1930 (Hays Code),” ArtsReformation, http://www.artsreformation.com/a001/hays-code.html .

Case Summaries, “First Amendment—Religion and Expression,” http://caselaw.lp.findlaw.com/data/constitution/amendment01/ .

Federal Communications Commission, “Obscenity, Indecency & Profanity: Frequently Asked Questions,” http://www.fcc.gov/eb/oip/FAQ.html .

Film Reference, “Violence,” Film Reference, http://www.filmreference.com/encyclopedia/Romantic-Comedy-Yugoslavia/Violence-BEGINNINGS.html .

Media Awareness, Media Issues, “Sex and Relationships in the Media,” http://www.media-awareness.ca/english/issues/stereotyping/women_and_girls/women_sex.cfm .

Media Awareness, Media Issues, “Violence in Media Entertainment,” http://www.media-awareness.ca/english/issues/violence/violence_entertainment.cfm .

Understanding Media and Culture Copyright © 2016 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

Home — Essay Samples — Social Issues — Freedom of Speech — Freedom Of Speech And Censorship In Social Media

Freedom of Speech and Censorship in Social Media

• Categories: Free Speech Freedom of Speech Social Media

About this sample

Words: 931 |

Published: Feb 8, 2022

Words: 931 | Pages: 2 | 5 min read

Works Cited

• Duggan, M., & Smith, A. (2013). 6% of online adults are reddit users. Pew Research Center.
• Freidman, T. (2014). The world is flat: A brief history of the twenty-first century. Picador.
• Hadley Malcom, H. (2014). USA Today's daily circulation slips below 2 million. USA Today. https://www.usatoday.com/story/money/business/2014/03/31/usa-today-daily-circulation-slips-below-2-million/7129935/
• Keith Loria, K. (2014). Social media sites and free speech: Should Twitter be allowed to show graphic images? Huffington Post. https://www.huffpost.com/entry/social-media-sites-and-fre_b_5450628
• Lauren Williams, L. (2014). Free speech and the ethics of social media content moderation. ThinkProgress. https://thinkprogress.org/free-speech-and-the-ethics-of-social-media-content-moderation-4ec69a56c34e/
• The Constitution of the United States of America: Analysis and Interpretation. (2020). U.S. Government Publishing Office.
• Thomas, C. (2017). Free speech and social media: Implications for democratic discourse in the United States. National Communication Association.
• United States v. Alvarez, 567 U.S. 709 (2012).
• Volokh, E. (2012). Freedom of speech and workplace harassment. The Yale Law Journal, 121(8), 2012-2094.

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Fact Check: Old Video Of RSS Chief Mohan Bhagwat Praising Congress Shared As Recent

Pti fact check desk found that the video clip shared in social media posts was a part of an old video dating back to 2018..

A smaller part of video of his 2018 speech was shared as recent.

Multiple social media users shared a video of RSS chief Mohan Bhagwat with a claim that he recently praised Congress for their contribution to India's freedom movement. In its investigation, the PTI Fact Check Desk found that the video clip shared in social media posts was a part of an old video dating back to 2018. A smaller part of video of his 2018 speech was shared as recent.

A Facebook user shared on May 22 shared a video of RSS chief Mohan Bhagwat in which he can be heard praising Congress for their contribution to India's freedom movement.

The caption of the post read, "Mohan Bhagwat Praises Congress party"

Here is the link and archive link to the post, and below is a screenshot of the same:

Investigation

Starting the investigation, the Desk ran the video through InVid Tool Search and found several keyframes. On running one of the keyframes through Google Lens, the Desk found several posts carrying the same video with similar claims. 

Two such posts can be viewed here and here , and their archived versions can be seen here and here , respectively.

On further scanning the search results the Desk came across a video on Facebook uploaded by the official page of The Indian Express on September 18, 2018.

The caption of the post read: "RSS chief Mohan Bhagwat said that Congress' ideology played an instrumental role in bringing the people of this country on the path to freedom." 

Here is the link to the post and below is a screenshot of the same:

The Desk noticed that this was the same video as the one shared on social media recently. 

Taking a cue from this, the Desk conducted a customised keyword search on Google and came across a YouTube video uploaded by the official channel of NDTV on September 18, 2018.

The description of the video read: "If an outreach was the aim, reach out it did. Mohan Bhagwat, chief of the Rashtriya Swayamsevak Sangh, opened a three-day conclave in Delhi today with a rare conciliatory tone for one of its harshest critics. "In the form of the Congress, a huge freedom movement fledged in the nation. It too gave birth to a number of all-sacrificing great personalities who continue to inspire us today. That movement managed to inspire ordinary people to join the freedom struggle. It had a huge hand in us achieving Independence," he said."

Here is the link to the video and below is a screenshot of the same:

Below is a combination image, comparing the visuals of the two videos, which shows that they are same.

"In the form of the Congress, a huge freedom movement fledged in the nation. It too gave birth to a number of all-sacrificing great personalities who continue to inspire us today. That movement managed to inspire ordinary people to join the freedom struggle. It had a huge hand in us achieving Independence," said the RSS chief.

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Subsequently, the Desk found that an old video dating back to 2018 was shared as recent on social media with misleading claims.

RSS chief Mohan Bhagwat recently praised Congress for their contribution to India's freedom movement.

The video dates back to 2018.

Several social media users shared a video of RSS chief Mohan Bhagwat praising Congress for their contribution to India's freedom movement. In its investigation, the Desk found an old video dating back to 2018 was shared as recent on social media with misleading claim.

(This story was originally published by PTI , and republished by NDTV as part of the Shakti Collective.)  

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Biden Marks Memorial Day With Message About Freedom as Trump Lashes Out

An earlier message from Donald J. Trump was more traditional, but it was quickly followed by one wishing a happy Memorial Day to “Human Scum.”

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By Michael D. Shear

Reporting from Washington

President Biden paid tribute to veterans who died in America’s wars at Arlington National Cemetery on Monday, hailing them as “a link in the chain of honor” who deserve recognition for protecting the nation’s democracy.

“Freedom has never been guaranteed,” Mr. Biden said in a nine-minute Memorial Day address, moments after placing a wreath at the Tomb of the Unknowns.

“Every generation has to earn it. Fight for it. Defend it in battle between autocracy and democracy,” he said of the nation’s veterans. “Our democracy is more than just a system of government. It’s the very soul of America.”

His somber message was a sharp contrast to that of former President Donald J. Trump, his challenger for re-election this year, who posted an angry and incendiary Memorial Day message on his social media site.

“Happy Memorial Day to All, including the Human Scum that is working so hard to destroy our Once Great Country,” the former president wrote on Truth Social.

Mr. Trump also wished a happy Memorial Day to Lewis Kaplan, the federal judge who oversaw the trials in which the former president was accused of defamation. Mr. Trump called Judge Kaplan “the Radical Left, Trump Hating Federal Judge.” He also called Justice Arthur F. Engoron, who presided over Mr. Trump’s civil fraud case, a “wacko.”

In an earlier, more traditional Memorial Day missive on Truth Social, Mr. Trump posted a photograph of himself saluting a wreath while he was president, and saying “WE CAN NEVER REPLACE THEM. WE CAN NEVER REPAY THEM. BUT WE CAN ALWAYS REMEMBER.”

But his vitriolic post followed a few minutes later as a reminder of the stark differences between the two rivals for the White House. As has been the case for years, either as president or as a presidential candidate, Mr. Trump showed that he would not be held to the norms of behavior that guide the nation’s leaders on a somber national holiday.

By contrast, Mr. Biden’s appearance was typical of the kind of message delivered by other presidents in both parties.

He focused mostly on the sacrifices of the past — members of the military who died in Afghanistan, Korea, Vietnam and the two world wars.

“Our fallen heroes have brought us closer today,” he said. “We’re not just fortunate heirs of their legacy. We have a responsibility to be the keepers of their mission, that truest memorial of their lives.”

Mr. Biden did not mention the wars raging in Europe and the Middle East, where he has pledged not to send American service members to fight alongside allies in Ukraine or Israel. The United States has been drawn into both conflicts nonetheless. The military is helping to provide humanitarian relief in Gaza and is equipping and supporting fighters in both places against Russia and Hamas.

Mr. Biden took a moment during the speech to remember his son Beau, who died of brain cancer after serving in Iraq as a member of the National Guard. The president has long said he believes his son developed his cancer as a result of living next to open “burn pits” in Iraq, where the military would burn waste, producing toxic smoke that nearby soldiers breathed in.

“This week marks nine years since I lost my son,” the president said, being careful to add that Beau Biden’s death was “not the same” as those of soldiers who lost their lives in battle.

”The pain of his loss is still with me every day as it is with you,” he said. “Still sharp, still clear. But so is the pride.”

It is that pride, the president said, that Americans must remember when service members return home from battle, or when their grieving family members receive their remains.

Mr. Biden has repeatedly said he believes that the country’s “most sacred” obligation is to take care of the military members who return home from battle, or to care for the relatives of those who have died. On Monday, he repeated that pledge again.

He hailed the passage in 2022 of legislation that he championed to make it easier for service members to receive health care and other benefits for ailments most likely caused by burn pits and other toxic exposures.

Mr. Biden said the legislation and other efforts to support veterans was an expression of gratitude from a thankful nation.

“Gratitude to our fallen heroes,” he said. “Gratitude to the families left behind. And gratitude to the brave souls who continue to uphold the flame of liberty all across our country and around the world.”

Michael D. Shear is a White House correspondent for The New York Times, covering President Biden and his administration. He has reported on politics for more than 30 years. More about Michael D. Shear

Our Coverage of the 2024 Election

Presidential Race: News and Analysis

After seven weeks of legal wrangling and tawdry testimony, Donald Trump’s criminal trial in Manhattan is in the hands of the jury , the final stage of the landmark case.

President Biden made an aggressive push to head off Trump’s modest gains among Black voters, condemning his Republican opponent as a racist .

An anti-Trump effort by Black faith leaders and activists signals that at least some of Biden’s critics on the left  will work to defeat his G.O.P. rival.

Sowing Election Doubt:  Trump has baselessly and publicly cast doubt about the fairness of the 2024 election  about once a day, on average, since he announced his candidacy.

Bringing Trump Into Focus:  For all the news that Trump makes, the Biden campaign is struggling to make the 2024 race about the former president .

Trump’s Bygone Era:  The greed-is-good era of the 1980s was the last time Trump's preferred public image was intact, and he’s been returning there in ways large and small .

Lawlessness as an Election Issue:  In most U.S. cities, rates of homicide and violent assault are down significantly from pandemic-era highs. But property crimes have risen, fueling voter anxiety .