argument against freedom of speech

17 Freedom of Speech Pros and Cons

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

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

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

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

List of the Pros of Freedom of Speech

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

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

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

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

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

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

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

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

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

List of the Cons of Freedom of Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A philosopher makes the case against free speech

And I push back.

by Sean Illing

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

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

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

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

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

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

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

Sean Illing

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

Brian Leiter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 2, 2015 | by Joshua Waimberg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

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

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

Acknowledgments

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

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

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Free Speech

Protecting free speech means protecting a free press, the democratic process, diversity of thought, and so much more. The ACLU has worked since 1920 to ensure that freedom of speech is protected for everyone.

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

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

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

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

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

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

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

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

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

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Leiter: a philosopher makes the case against free speech, a philosopher makes the case against free speech.

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

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

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

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

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

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

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

Sean Illing

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

Brian Leiter

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

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

Read more at Vox.com

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What to Know About the Supreme Court Arguments on Social Media Laws

Both Florida and Texas passed laws regulating how social media companies moderate speech online. The laws, if upheld, could fundamentally alter how the platforms police their sites.

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McCabe reported from Washington.

Social media companies are bracing for Supreme Court arguments on Monday that could fundamentally alter the way they police their sites.

After Facebook, Twitter and YouTube barred President Donald J. Trump in the wake of the Jan. 6, 2021, riots at the Capitol, Florida made it illegal for technology companies to ban from their sites a candidate for office in the state. Texas later passed its own law prohibiting platforms from taking down political content.

Two tech industry groups, NetChoice and the Computer & Communications Industry Association, sued to block the laws from taking effect. They argued that the companies have the right to make decisions about their own platforms under the First Amendment, much as a newspaper gets to decide what runs in its pages.

So what’s at stake?

The Supreme Court’s decision in those cases — Moody v. NetChoice and NetChoice v. Paxton — is a big test of the power of social media companies, potentially reshaping millions of social media feeds by giving the government influence over how and what stays online.

“What’s at stake is whether they can be forced to carry content they don’t want to,” said Daphne Keller, a lecturer at Stanford Law School who filed a brief with the Supreme Court supporting the tech groups’ challenge to the Texas and Florida laws. “And, maybe more to the point, whether the government can force them to carry content they don’t want to.”

If the Supreme Court says the Texas and Florida laws are constitutional and they take effect, some legal experts speculate that the companies could create versions of their feeds specifically for those states. Still, such a ruling could usher in similar laws in other states, and it is technically complicated to accurately restrict access to a website based on location.

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Answers to 12 Bad Anti-Free Speech Arguments

How to effectively counter some perennial arguments against free speech.

Editor’s Note:  The following essay first appeared in  Areo Magazine  in May 2021 and is reproduced here with the author’s permission. In a podcast interview with Greg Lukianoff earlier that year, I expressed my frustration at being repeatedly confronted with the same hackneyed arguments against free speech. In response, Lukianoff wrote an article outlining some of these arguments and systematically debunking them one by one.

He continued the list in a multi-part series of essays on his blog, The Eternally Radical Idea, with the assistance of former president of the ACLU and free speech expert Nadine Strossen. In Lukianoff ’ s new book, The Cancelling of the American Mind (Oct 2023), co-authored with Rikki Schlott, he traces the development of threats to free speech in the US in the intervening period since the publication of this piece and demonstrates that the culture has become, if anything, more hostile to freedom of speech than before. —Iona Italia

Those of us who defend free speech often find ourselves combating the same bad arguments in favour of censorship over and over again. In this article, I will suggest responses to some of the most common arguments against freedom of speech, and, where possible, will intersperse links to articles that develop these arguments further.

Assertion 1: Free speech was created under the false notion that words and violence are distinct, but we now know that certain speech is more akin to violence.

Answer:  Speech equals violence  isn’t a new idea. It’s a very old—and very bad—idea.

On campus, I often run into people—not only students, but professors—who seem to think they’re the first to notice that the speech/violence distinction is a social construct. They conclude that this means it’s an arbitrary distinction—and that, since it’s arbitrary, the line can be put where they please. (Conveniently, they draw the line based on their personal views: if it’s speech that they happen to hate, then it just might be violence.) But, ironically, the whole point of freedom of speech, from its beginning, has been to enable people to sort things out  without  resorting to violence. A quotation often attributed to Sigmund Freud (which he  attributed  to another writer) conveys this: “The first human being who hurled an insult instead of a stone was the founder of civilisation.”

Yes, a strong distinction between the expression of opinion and violence  is  a social construct, but it’s one of the best social constructs for peaceful coexistence, innovation, and progress that’s ever been invented. Redefining the expression of opinion as violence is a formula for a chain reaction of endless violence, repression and regression.

Assertion 2: Free speech rests on the faulty notion that words are harmless.

Answer: No, it doesn’t. If free speech was not powerful there would be no need either to protect or ban it. It’s not surprising that free speech can be harsh, since it’s meant as a replacement for actual violence.

Historically, freedom of speech has been justified as part of a system for resolving disputes without resort to actual violence. Acceptance of freedom of speech is a way to live with genuine conflict among points of view (which has  always  existed) without resorting to coercive force.

I’ve made this point so many times in my career, in so many different ways, that someone made a graphic about the way I once put it on a TV show.

It’s not surprising that free speech in a democracy can be very heated, when that protection covers people’s most sincerely held religious beliefs and their opinions about matters of life and death.

As I argue in  my 2014 book , Unlearning Liberty: Campus Censorship and the End of American Debate :

The idea that we should campaign against hurtful speech among adults arises from a failure to understand that free speech is our chosen method of resolving disagreements, using words rather than weapons. Open debate is our enlightened means of determining nothing less than how we order our society, what is true and what is false, what wars we should fight, what policies we should pass, whom we should put behind bars for the rest of their lives, and who gets to control our government. This is a deadly serious business. Being a citizen in a democratic republic is supposed to be challenging; it’s supposed to ask something of its citizens. It requires a certain minimal toughness—and commitment to self-governing—to become informed about difficult issues and to argue, organize and vote accordingly. As the Supreme Court observed in 1949, in  Terminiello v. Chicago , speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” The only model that asks nothing of its citizens in terms of learning, autonomy and decision-making is the authoritarian one. By arguing that freedom  from  speech is often more important than freedom  of  speech, advocates unwittingly embrace the nineteenth-century (anti-)speech justification for czarist power: the idea that the Russian peasant has the best kind of freedom, the freedom from the  burden of freedom  itself (because it surely  is  a burden).

For more on the history of censorship through the ages, I highly recommend Eric Berkowitz’s 2021 book  Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News .

Assertion 3: Free speech is the tool of the powerful, not the powerless.

Answer: The powerful do well under virtually any system of government. They’re not the ones who need freedom of speech. Its purpose is precisely to protect minority opinions and those who are unpopular with powerful people.

For most of history, the rich and powerful were protected by their wealth and power. Then, when democracies first emerged, the majority set the laws, and, because of that, their majority positions were protected by law. You  only  need a separate concept of freedom of speech or a law like the First Amendment to protect people, ideas, and arguments that are not already otherwise protected by the right to vote or some other power.

The ones who enforce the rules, are, by definition, powerful. In a country with strong protections for freedom of speech, the powerful are barred from using the legal system to attack the powerless for their speech. If you empower the government to censor, you are giving the powerful  more power . The idea that we can trust them to use that power to defend the powerless is not borne out by history. If you want to give whichever people are most powerful censorship tools to protect the marginalised, do you trust that they will use them well? Do you trust what a Biden administration would do with that power? If so, do you trust what a Trump administration would do with that power? A good intellectual exercise before passing a new law is to consider how your worst enemy would use that law—and thinking about that is even more important when imagining restrictions on free speech.

Assertion 4: The right to free speech means the government can’t arrest you for what you say; it still leaves other people free to kick you out.

Answer: No, the popular  xkcd cartoon  below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.

This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.

The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment, even if we are talking about the US context alone. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong  cultural  commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes  small-l liberal  values that were once expressed in common American idioms like “to each his own, everyone’s entitled to their opinion” and “it’s a free country.” These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in  West Virginia State Board of Education v. Barnette , “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a  heckler’s veto .

The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.

A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the  small-d democratic  value of listening.

Assertion 5: But you can’t shout  fire!  in a crowded theatre.

Answer: Anyone who says “you can’t shout  fire!  in a crowded theatre” is showing that they don’t know much about the principles of free speech, or free speech law—or history. 

This old canard, a   favourite reference  of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers point out that it is, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White penned a brilliant and thorough takedown of this misconception. While his piece is no longer available online, you can find a thorough discussion of the arguments by Jerry Coyne here . Please read it before proclaiming that your least favourite language is analogous to “shouting fire in a crowded theatre.”

The phrase is a misquotation of an analogy made in a 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher, and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theater and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case  more than 50 years ago . That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, “the crowded theatre” cliché endures, as if it were some venerable legal principle.

The court’s objection, we should note, was only to “ falsely  shouting fire”: if there is, in fact, a fire in a crowded theatre, please let everyone know.

Assertion 6: The arguments for freedom of speech are outdated.

Answer: John Stuart Mill’s central arguments in  On Liberty  remain undefeated, including one of his strongest arguments in favour of freedom of speech— Mill’s   trident —of which I have never heard a persuasive refutation.

Mill’s trident holds that, for any given belief, there are three options:

• You are wrong, in which case freedom of speech is essential to allow people to correct you.
• You are partially correct, in which case you need free speech and contrary viewpoints to help you get a more precise understanding of what the truth really is.
• You are 100% correct. In this unlikely event, you still need people to argue with you, to try to contradict you, and to try to prove you wrong. Why? Because if you never have to defend your points of view, there is a very good chance you don’t really understand them, and that you hold them the same way you would hold a prejudice or superstition. It’s only through arguing with contrary viewpoints that you come to understand  why  what you believe is true.

Assertion 7: Hate speech laws are important for reducing intolerance, even if there may be some examples of abuse.

Answer: Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up. During the same period, ethnic and religious tolerance have improved in the United States.

At least a dozen Western European countries have hate speech laws, many of which run counter to their legal or historical commitments to free speech. But even though those laws have been on the books for years, by most measures Western Europe is less tolerant than the United States.

Western Europe as a whole scores  24% on the antisemitism index , meaning about 24% of the population harbours antisemitic attitudes, even though many of their hate speech laws explicitly prohibit Holocaust denial. In the United States, with no such laws, the antisemitism index is ranked at  10% .

If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist. Yet, in 2019, in the United States, there were 2.61 hate crimes per 100,000 people; in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.

Nor has restricting hate speech prevented the spread of intolerance.  In 1986 , the UK passed a law against “words or behaviour … likely to stir up racial hatred”; yet, in the 1990s, racial tolerance  decreased . Despite having hate speech laws since the 1980s, Germany is experiencing increased  anti-Muslim bigotry  and  antisemitism . France passed its  Gayssot Act  outlawing Holocaust denial in 1990, yet as recently as 2019 it held a  17% antisemitism index score .

And I don’t just believe that cracking down on hate speech failed to  decrease  intolerance, I think there are solid grounds to believe that it helped  increase  it. After all, censorship doesn’t generally change people’s opinions, but it does make them more likely to talk only to those with whom they already agree. And what happens when people only talk to politically similar people?  The well documented effect of group/political polarisation takes over , and the speaker, who may have moderated her belief when exposed to dissenting opinions, becomes more radicalised in the direction of her hatred, through the power of group polarisation.

Assertion 8: Free speech is nothing but a conservative talking point.

Answer: Free speech is neither a conservative nor liberal idea. It is an  eternally radical idea .

In our hopelessly polarised societies, too many people begin by asking, “So, is free speech a conservative or progressive idea? Is it right-wing or left-wing?” If the answer is “left-wing,” throngs on the right assume it can be ignored. If the answer is “right-wing,” many on the left feel absolved from having to take it seriously. At various points—even in recent history—both major political parties in the United States have claimed to represent free speech at the same time as both have been extremely hostile to free speech.

True support for free expression—especially extreme political speech with which you disagree—is a rare and, indeed, historically radical idea. I think this point is so important that I even named my blog  The Eternally Radical Idea .

Assertion 9: Restrictions on free speech are OK if they are made in the name of civility. 

Answer: In certain settings, they can be reasonable, but, generally, what is “civil” is defined by the powerful or the majority. And they tend to see any speech with which they simply disagree as “uncivil,” while seeing any uncivil speech with which they agree as “righteous rage.”

Assertion 10: You need speech restrictions to preserve cultural diversity. 

Answer: Few ideas are more culturally diverse than what counts as propriety, or what constitutes correct or acceptable speech. These ideas are different from country to country, from year to year, for men and women, and especially across class lines. Indeed, preserving diversity in an environment with many cultures requires, rather than forbids, a high tolerance for speech that adheres to different norms of propriety.

Assertion 11: Free speech is an outdated idea; it’s time for new thinking. 

Answer: Censorship is a far older idea, as old as our species; free speech is comparatively the new kid on the block. As Nat Hentoff once wrote,  quoting  former  Los Angeles Times  editor Phil Kerby: “Censorship is the strongest drive in human nature; sex is a weak second.” For a more detailed version of this argument, see Hentoff’s 1992 book  Free Speech For Me—But Not For Thee: How the American Left and Right Relentlessly Censor Each Other .

Assertion 12: I believe in free speech, but not for blasphemy. 

Answer: You cannot claim to believe in free speech and at the same time carve out an exception for blasphemy. That’s the whole ball game. Ideas of freedom of speech came about precisely to address the tendency to label unorthodox views as heretical.

Free speech is valuable, first and foremost, because, without it, there is no way to know the world as it actually is. Understanding human perceptions, even incorrect ones, is always of scientific or scholarly value, and, in a democracy, it is essential to know what people really believe. This is my  “pure informational theory of freedom of speech.”  To think that, without openness, we can know what people really believe is not only hubris, but magical thinking. The process of coming to know the world  as it is  is much more arduous than we usually appreciate. It starts with this: recognise that you are probably wrong about any number of things, exercise genuine curiosity about everything (including each other), and always remember that it is better to know the world as it really is—and that the process of finding that out never ends.

Author’s note: I would like to thank Adam Goldstein, Sean Stevens, Ryne Weiss and Komi German from FIRE for helping put this together, and especially for gathering the comparative hate crime data from EU countries.

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Don’t Use These Free-Speech Arguments Ever Again

Most speech, hateful or not, is protected by the Constitution. To pretend otherwise is foolhardy.

America is awash in ugly, hateful speech. White nationalists march defiantly , and their slogans are echoed in murderous rampages . Government officials revel in disparaging the very people they patrol . Many people—and I’m one of them—argue that the president’s rhetoric encourages this grotesque and shameful state of affairs even as he nominally condemns it. This has all led to more discussion about free speech and its limits .

What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be . That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact , the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.

If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is .

Lee C. Bollinger: Free speech on campus is doing just fine, thank you

I’ve been trying for years to point out these tropes, with mixed success. Because hope prevails over experience, I’m trying again. Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.

“Not all speech is protected; there are exceptions to the First Amendment.”

It’s true that the First Amendment has exceptions and doesn’t protect all speech. That’s an apt rebuttal if someone says “All speech is protected by the First Amendment.” But it’s not helpful in deciding whether particular speech is outside of First Amendment protection.

First Amendment exceptions are few and well established. In a 2010 case about videos depicting animal cruelty, the United States Supreme Court reaffirmed the “historic and traditional categories long familiar to the bar” of speech outside First Amendment protection, including obscenity, defamation, fraud, and incitement. Each of those categories, in turn, is narrowly and carefully defined through half a century of precedent.

Garrett Epps: John Roberts strikes a blow against free speech

In that same 2010 case, the Court unambiguously refused to create new exceptions on demand. “Our decisions in [a child pornography case] and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.”

That’s why “The First Amendment is not absolute” is usually empty rhetoric, and not a helpful response to the question “Can the government punish this speech?”  The relevant question is “Does this speech fall into an established exception to the First Amendment, and if not, what does that mean?”

If I’m bitten by a snake on a hike and seek medical attention, and ask the doctor if the snake is venomous, I’m not looking for the doctor to assure me that “not all snakes are venomous.” I want the doctor to use her medical expertise to analyze whether the snake that bit me is venomous.

“This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”

This line, though ubiquitous, is just another way to convey that “not all speech is protected by the First Amendment.” As an argument, it is just as useless.

But the phrase is not just empty. It’s also a historically ignorant way to convey the point. It dates back to a 1919 Supreme Court decision allowing the imprisonment of Charles Schenck for urging resistance to the draft in World War I. Justice Oliver Wendell Holmes Jr. wrote that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This decision led to a series of cases broadly endorsing the government’s ability to suppress speech that questioned official policy . But for more than half a century Schenck has unequivocally and universally been acknowledged as bad law.

James Loeffler: An abandoned weapon in the fight against hate speech

Holmes himself repented of the decision—though he continued  to indulge his taste for pithy phrases with lines like “ Three generations of imbeciles are enough ” to justify forcible government sterilization of the handicapped.

So when you smugly drop “You can’t shout ‘Fire!’ in a crowded theater” in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters. This is not persuasive or helpful.

“Incitement and threats are not free speech.”

While technically true, not everything that might colloquially be called a “threat” is outside the protection of the First Amendment. Only “ true threats ” are unprotected—threats conveying “a serious expression of intent to an act of unlawful violence to a particular individual or group of individuals.” There’s some ambiguity about whether evaluating the seriousness of a threat is an objective question, or a subjective question, or both , something the Supreme Court recently failed to resolve .  But most courts impose an objective test: A threat is “true” if a reasonable person hearing it would take it as a sincere expression of intent to do harm. That doesn’t cover most hyperbole and political invective .

We’re free, moreover, to attack the law, argue that breaking it is moral, and urge our fellow citizens to break it. We can even assert that violence is justified.  Such advocacy is only unprotected when it is “ directed to inciting or producing imminent lawless action and is likely to incite or produce such action. ”  Imminent is the key word here.  Saying “Go beat up those protesters over there” probably qualifies; ugly rhetoric in general does not.

“Fighting words are not free speech.”

People in favor of restrictions on ugly speech often point to the “fighting words” doctrine—the idea, taken from the 1942 case Chaplinsky v. New Hampshire , that the government can punish words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”  This argument ignores the past 80 years of First Amendment cases, which have dramatically narrowed the doctrine to the point that many commentators question whether it still survives. At most, the doctrine allows the government to punish face-to-face insults likely to provoke an immediate violent reaction from the particular person addressed .

Read: Trump’s redundant executive order on campus speech

Furthermore, like invoking “’Fire!’ in a crowded theater,” dropping “fighting words” reveals a tin ear for history. As a Jehovah’s Witness, Walter Chaplinsky (of Chaplinsky v. New Hampshire ) was a member of a religious minority subject to shocking abuse and injustice in the 1930s and ’40s. He was preaching on a street corner when a mob assaulted him; one man tried to impale him on a pole bearing the American flag. Police officers led him away rather than arresting his attackers, provoking him to call them fascists. For that offense he was prosecuted . So when you cite the fighting-words doctrine to urge punishment of bigotry, you’re relying on a doctrine built on the subjugation of religious minorities. Mind the irony.

“Hate speech is not free speech.”  

There is an admirable growing social consensus that it’s despicable to denigrate people based on ethnicity, religion, or sexuality. But most despicable speech is protected by the First Amendment. Contrary to the popular slogan, there is no hate-speech exception to the First Amendment . Particular examples of hateful speech may satisfy the established tests for the true-threats or incitement exceptions, but they’re not unprotected just because they’re hateful.

“Stochastic terrorism is not free speech.”  

In the past few months you may have heard the term stochastic terrorism to describe speech that, according to some advocates, whips up hatred against groups and leads unbalanced people to commit violence against them, even if it doesn’t explicitly call for violence. By definition, if stochastic terrorism doesn’t call for violence, it doesn’t fall outside the First Amendment, because it’s not intended and likely to lead to imminent lawless action. It may be morally reprehensible, but, just like hate speech, it’s protected.

“We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse. A related rhetorical trope is “line drawing”: the idea that we must draw lines between free speech and abusive speech.

In point of fact, however, American courts don’t balance the benefits and harms of speech to decide whether it is protected—they look to whether that speech falls into the First Amendment exceptions noted above. As the Supreme Court recently explained , the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Read: The age of reverse censorship

A related trope is “This isn’t free speech; it’s [x],” where x is bullying, or abuse, or some other social evil. But many social evils are protected by the First Amendment. “This isn’t free speech; it’s [x]” is empty rhetoric unless x is one of the established First Amendment exceptions.

“They do it in Europe!”

Many other countries allow substantially broader limits on free speech.That’s relevant to what the law in America should be , but it has nothing to do with what the law is .

“We talked to a professor and a litigator who said this is not protected speech.”

Commentators asserting that certain speech is outside First Amendment protections often cite professors and litigators who agree with them. This is entertaining, but it may not yield reliable information.

With the greatest respect, legal academics are notoriously bad at distinguishing between normative and descriptive statements about law. If I ask 10 physics professors what will happen if I drop my pencil and why, they will all say: “It will fall, because of gravity.” There is very little risk that they will say “Well, maybe it will fall or maybe it won’t” because they think gravity is unfair.  But if I put 10 law or political-science professors on TV and ask them whether particular speech is protected by the First Amendment, there is a substantial chance that some of them will give responses based on what they think the law ought to be, not based on what it is.

Similarly, litigators are trained advocates. Our job is making confident, firm assertions about the law in service of our clients, even when the law is murky. It’s a hard habit to break, and some litigators will act as advocates, not experts, when asked about free-speech issues.

That doesn’t mean you should ignore professors or litigators when they talk about the First Amendment. It means you should approach their pronouncements with appropriate skepticism, and look carefully for signs that they are offering an argument and not a description.

“This speech may be protected right now, but the law is always changing.”

People arguing that particular speech should not be protected often concede that the law does not currently support them, but that it could change at any time. It’s true, on a facile level, that the Supreme Court changes its interpretation of the Constitution. We’ve seen astounding, society-altering changes in our lifetimes. For instance, it took only 17 years for the Supreme Court to go from saying that the government can criminalize same-sex relationships to saying that it cannot .

But such changes don’t come out of the blue. The Supreme Court’s initial decision on same-sex relationships was bitterly divided 5–4; the case overturning it was angrily divided 6–3. The potential for change was clear. Similarly, the Court’s First Amendment decisions on campaign-finance limitations and mandatory union dues have featured 5–4 splits and passionate rhetoric. The Court’s stance on those issues could easily change with a new justice or two.

Read: It’s time to stop using the ‘fire in a crowded theater’ quote

Many free-speech issues that are controversial politically and culturally, by contrast, are utterly banal legally, and the Court has offered no signs of change. For instance, over the past generation the Court has issued a series of unanimous or near-unanimous decisions affirming that hateful and offensive speech is protected by the First Amendment.

The observation “The law changes all of the time” is, then, like the observation “Not all speech is protected by the First Amendment”—a truism that is of no use in evaluating whether specific speech is protected or likely to become unprotected.

It’s great that Americans have strong opinions about free speech and the First Amendment. Engaged citizens make a stronger society. But good citizenship also requires a basic grasp of civics. Commentators and talking heads have an obligation to inform, not mislead, Americans on what their rights are, and citizens should train themselves to separate wishes about the law from accurate descriptions of it. Our national discussion of hateful speech is deadly serious, and calls for a serious approach, not empty rhetoric. The next time someone tells you that you can’t shout “Fire!” in a crowded theater, tell him why he’s not helping.

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Understanding hate speech

Hate speech versus freedom of speech

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

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

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

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

— United Nations Secretary-General António Guterres, May 2019

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“The remedy for falsehoods is more speech, not enforced silence,” says Michael Glennon, professor of constitutional and international law at The Fletcher School. Photo: Pierre Chiha

An Argument for Free Speech, the “Lifeblood of Democracy”

A Fletcher professor makes the case against censorship in a provocative new book

Free speech is the heart of democracy. But who decides what speech should be free?

Michael Glennon , professor of constitutional and international law at The Fletcher School, has been troubled by a growing trend to censor speech, from college campuses to social media to the halls of government itself. In a provocative new book, Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era , he argues that such bans—while often well-meaning—are almost always counterproductive, creating more problems than they solve.

The book’s sweeping argument runs from 19th-century Supreme Court Justice Oliver Wendell Holmes Jr., who set the foundations of First Amendment law, all the way to the most recent social media controversies.

Glennon spoke with Tufts Now about the importance of free speech and why he believes a “marketplace of ideas” is the best antidote to tyranny.

In your introduction, you describe the change you’ve observed in students over the last few years when it comes to free speech. How did that inspire you to write this book?

Students’ attitudes toward free speech have changed dramatically. Nationwide, over half of college students believe that schools shouldn’t allow a speaker on campus who has previously expressed ideas they intensely dislike, and over 30 percent believe it’s acceptable to drown out speakers to prevent them from speaking.

Many of these students think that suppressing free speech is somehow necessary to preserve democracy. I wrote the book to suggest that this view is profoundly and dangerously mistaken.

Freedom of speech is the lifeblood of democracy. They both rest on the same premise: that people are able to sort out for themselves what’s true and what’s false, and that it’s for individuals, not the government, to judge what’s in their own best interests.

“Censorship inevitably backfires... Censorship alienates the public, generates distrust, fosters social division, and sparks political instability.” Michael Glennon Share on Twitter

You devote the first part of the book to Oliver Wendell Holmes Jr. and his journey into skepticism about universal morality. To whom is that relevant today?

Many of today’s students have a keen thirst for social justice, which I admire. When Holmes was their age, he shared that thirst, dropping out of college to enlist in the Union Army in a war against slavery, in which he was nearly killed several times.

He became very skeptical of people who believe they have unique access to universal, absolute truth, who view their adversaries as evil incarnate. That, he believed, leads ultimately to violence.

All of us today need to approach public debate with a bit of humility, recognizing that none of us is infallible and that rigid moral certitude leads down a dangerous path.

You argue that government censorship is wrong and even counterproductive. What are some of the reasons?

We know from centuries of experience, in many countries, that censorship inevitably backfires. It discredits the censors, who are seen as patronizing elites. It demeans listeners who are told they can’t handle the truth. It makes martyrs and heroes out of the censored and drives their speech underground where it’s harder to rebut.

Suffragettes, civil rights leaders, and LGBTQ+ activists all have relied on free speech to get their messages out. Censorship alienates the public, generates distrust, fosters social division, and sparks political instability.

It’s not that some speech isn’t harmful—it’s that trying to suppress it causes greater harm.

Many people would probably be surprised to learn that hate speech such as marching with Nazi paraphernalia or burning a cross at a demonstration deriding Black and Jewish people is protected under the First Amendment. Why is it protected?

Not all hateful speech is protected. Incitement to violence, fighting words, defamation, and true threats are all often hateful yet that speech is not protected. But other hateful speech is protected, for several reasons.

Hatred is a viewpoint. It’s for the individual to think and feel as he or she wishes; it’s only when the individual crosses the line between thought and action to incite violence or defame or threaten someone that the state can intervene.

Hate speech laws are also invariably vague and overbroad, leading to arbitrary and abusive enforcement. In the real world, speech rarely gets punished because it hurts dominant majorities. It gets punished because it hurts disadvantaged minorities.

Many Americans feel it is OK to ban clearly false information online, but you argue that would be a bad idea. Why?

The ultimate problem with banning falsehoods is that to do so you’d need an official Ministry of Truth, which could come up with an endless list of officially banned falsehoods. Not only would that list inevitably be self-serving, but it could be wrong.

Even when it comes to clear falsehoods, there are reasons to leave them up. [Former President Donald] Trump claimed, for example, that the size of the crowd at his inauguration was larger than [former President Barack] Obama’s, which was indisputably false. But the statement had the effect of calling into question not only Trump’s veracity but also his mental soundness, which is important for voters to assess.

You say after Trump’s participation in the January 6 uprising, social media platforms banned him for the wrong reasons. What do you mean?

They were wrong to apply a norm of international human rights law in banning him—a supposed prohibition against “glorifying violence.” That’s a vague, overly broad standard that can pick up everything from praising Medal of Honor winners to producing Top Gun .

We’re dealing here with an American president speaking from the White House to the American people, so I say the proper standard should have been the U.S. First Amendment and whether Trump intended to incite imminent violence and whether that violence was likely. Under that test, I think it’s a close case.

What was wrong with the way the government tried to curb “misinformation” about COVID-19?

Justice Louis Brandeis [who served on the Supreme Court from 1916 to 1939] said that the fitting remedy for evil counsels is good ones.

If someone counsels drinking bleach to cure COVID, the remedy is not to suppress it—it’s to point out why that’s wrong. But over and over, the government’s remedy for speech it didn’t like was to strongarm social media platforms to take it down.

The government wouldn’t have lost so much credibility if it had only said, “This is our best guess based on available evidence.” Instead, it spoke ex cathedra on masks, lockdowns, school closings, vaccine efficacy, infection rates, myocarditis, social distancing, you name it—claims that often turned out to be untenable—and then it bullied the platforms to censor prominent experts who took issue with its misinformation.

Many commentators are worried about disinformation and AI-generated “deep fakes” affecting the outcome of the 2024 election. What’s the best remedy for that?

The remedy for falsehoods is more speech, not enforced silence. If someone thinks a social media post contains altered imagery or audio, the initial solution is simply to say that and let the marketplace of ideas sort it out.  

Obviously counter-speech isn’t always the answer: You still run into eleventh-hour deep fakes that there’s no time to rebut. People do have privacy rights and interference with elections undercuts democracy.

The trick is to write legislation that catches malign fakery but doesn’t also pick up satire and humor that is obviously bogus. That’s not easy. Well-intended but sloppy laws often trigger serious unintended consequences.

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Table of Contents

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

• David Hudson

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

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

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

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

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

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

Self-governance and a check against governmental abuse

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

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

Liberty and self-fulfillment

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

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

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

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

FIRE's Guide to Free Speech on Campus

Campus guides.

Too many campuses still silence students who dare exercise their right to free expression.

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

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

Informational theory

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

Coronavirus and the failure of the 'Marketplace of Ideas'

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

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

Safety valve theory

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

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

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

Tolerance theory

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

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

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

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

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

• Free Speech

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Sophia Rosenfeld

Not Just the First Amendment

Teaching the History of Free Speech and Censorship

/ Article Archive

/ Not Just the First Amendment

Publication Date

September 12, 2024

Perspectives Section

Perspectives Daily

Teaching & Learning, Undergraduate Education

I teach a history course that addresses only one element of the US Constitution: the First Amendment’s protection of speech and press. But we do not get to this very brief, hard-to-interpret late 18th-century text until about the midway point in the semester. Both before and after that moment, the class ranges around the globe and across time to introduce the idea of thinking historically—which is to say, contextually as well as philosophically—about several fundamental questions for modern democracies. Who has the right and the means to speak (and where and when and why)? What is it permissible and impermissible to say? And who or what entities get to decide on and enforce the rules?  

During World War II, the US Office of War Information both celebrated free speech as a characteristic of liberal democracies and warned the American public of the importance of limiting it for the sake of national security.

To that end, the course starts with several weeks devoted to arguments for the regulation of thought and expression going back to the Renaissance and the advent of printing in the West. Using case studies, including the trial of Galileo in papal Rome and the French monarchy’s efforts to stamp out a black market in dangerous ideas during the Enlightenment, the class explores varieties of intellectual coercion and official censorship (religious, political, and more), how they functioned, and, finally, the problems their agents encountered, from the way notoriety frequently drives up audience demand to the difficulty of defining standards.  

Only then do we get to a new species of argument: those against censorship or, more precisely, in favor of the deregulation of speech and print. We spend the next part of the course exploring the very different grounds and circumstances on which this case was made between John Milton’s Aeropagitica in the 17th century and Alexander Meiklejohn’s Free Speech and Its Relation to Self-Government in the middle of the 20th, with considerable attention also going to key 18th-century experiments in implementing limited forms of freedom of expression prior to the US Bill of Rights. Can we really understand the particularity of various Anglo-American formulations without also considering the Swedish version of 1766, with its focus on the right to access official information or listeners’ rather than speakers’ rights? We also look at arguments, like those of early modern advocates of patent and copyright or, later, Marxists of different stripes, for new kinds of restrictions on expression. That way, the definitive but also unusually terse free speech clause of the US Constitution can be seen as the product of several centuries of intellectual, political, religious, and commercial fights and, ultimately, a radical idea on which to found and maintain a nation-state.  

What happens when freedom of speech and privacy end up conflicting?

In the second half of the course, we then explore specific areas in which interpretation of the parameters of free speech remain heavily contested to this day, in part because the First Amendment and most other modern constitutional protections for freedom of expression around the world are so open-ended in their formulations. Against the backdrop of the development of capitalism, changes in information technology, the redefinition of relationships between church and state, the evolving needs of empires, the rise of the author as a profession and type, the history of slavery and abolition, the development of new conceptions of art, the invention of an international order along with the expansion of warfare, and more, we address enduring and tough questions. What counts as seditious speech? What is blasphemy and why have charges of it lasted in much of the world? What happens when freedom of speech and privacy end up conflicting? What is obscenity and how can we tell it apart from art or literature? Where does the idea of “hate speech” originate and what, if anything, should be done to curtail it? When should freedom of speech extend to lying and falsehood and when should it not?   

Test cases for this part of the course range from fights over the Alien and Sedition Acts almost immediately after the introduction of the First Amendment in the 1790s to very recent and ongoing conflicts in multiethnic Denmark and France around the making and showing of cartoons depicting the prophet Mohammed. We also consider what counts (and when and where and by whom) as expressive, from clothing to money; how the spaces where expression happens, from schools and universities to village squares and parks, shape perceptions; the challenges wrought by the internet and artificial intelligence; and how speech rights and power intersect in an inegalitarian world.  

Every time I teach this course—and over the last 14 years, I’ve taught variants at the University of Virginia, Yale University, and the University of Pennsylvania—I need to update the syllabus. Much of the reading is centuries old: Inquisition trial records, Louis-Sébastien Mercier’s underground vision of a communicative utopia, guidelines for speech in British India. But as the contemporary issues keep changing, the examples and the readings need to change as well. Every semester, we also try to track newsworthy speech-related developments unfolding in real time, from the legal fortunes of cake bakers who don’t want to be compelled to produce “creative” work in support of gay marriage ( Masterpiece Cake Shop v. Colorado Civil Rights Commission ) to arguments about Chinese technology transfer policy. The goal is to explore these examples in a larger historical framework, not just to approach them as normative problems to be solved at a philosophical level, though we do some of that as well.  

But this past year, as the Israel–Hamas War escalated and produced protests and counterprotests on many US college campuses, including my own, it sometimes felt as if the news cycle was moving faster than we could keep up—and it was all hitting a little too close to home. That’s also when I did some new thinking about how much and how best to incorporate this very raw conflict into the course. I decided that rather than shy away from the controversy, we could approach it together as yet another historical dilemma. The great thing, after all, about a history class that explores a single aspect of the US Constitution from so many angles is that it gives students (and, in truth, the professor too) new tools with which to analyze their own reality and come to truly thought-out points of view. How would a follower of John Stuart Mill—or for that matter, Frederick Douglass or Emma Goldman or even Herbert Marcuse—respond to what’s unfolding around us right now? Is the First Amendment still (or has it ever been) up to the task of helping us practice democracy or arrive at truth, or is it getting in the way? Is the tradition of free speech as laid out in the Constitution suitable to or in need of modification in the classroom and the larger university itself? How does it fit, or not, with notions of academic freedom but also the basic mission of higher education and its promise of equal terms on which to learn for all?  

A s the contemporary issues keep changing, the examples and the readings need to change as well.

All these questions came up in my fall 2023 class. The responses never divided along standard political right/left axes—free speech questions generally don’t. What was so valuable was the opportunity to hear a classroom full of young people characterized by differences in place of origin, background, political leanings, and areas of study and interest wrestle with how a constitutional democracy should work by considering how it has—and considering the promises and pitfalls of the alternatives.  

Sophia Rosenfeld is Walter H. Annenberg Professor of History and department chair at the University of Pennsylvania. Her forthcoming book is The Age of Choice: A History of Freedom in Modern Life .  

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Free Speech as a Right and a Way of Life

We must understand the philosophical foundations of the right to free speech to apply it to contemporary controversies.

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Editor’s note: In May 2024, the Ayn Rand Institute Press released The First Amendment: Essays on the Imperative of Intellectual Freedom , featuring four in-depth essays by Tara Smith previously published in law reviews, and one by Onkar Ghate previously published in New Ideal . The book includes one essay by Gregory Salmieri written exclusively for the book. Drawing on Ayn Rand’s theory of individual rights, Salmieri’s piece identifies the philosophical foundations of the right to free speech and applies the principle to a number of controversies about free speech today (regarding “cancel culture,” social media platforms, and public education). Because it offers such fundamental guidance for addressing crucial cultural and political questions, we are republishing a newly edited version of it here.

The First Amendment to the United States Constitution protects freedom of speech from government interference, and much of the discussion of free speech in America revolves around this legal context. But there is a widespread view that to take advantage of these legal protections (and, indeed, to sustain them), we also need a culture of free speech . 1 Thus, self-professed champions of free speech inveigh not only against violations of the First Amendment but also against a wide range of private actions and policies. These include disruptive protests that silence speakers; content moderation by social media companies; sanctions by universities, corporations, and other institutions against those who express certain opinions; and “cancel culture” (i.e., attempts to trigger such sanctions by stigmatizing people for the opinions they’ve expressed).

Citing John Stuart Mill, these professed champions of free speech worry about an intellectually stifling environment in which all but a narrow range of opinions are stigmatized and driven to society’s margins. As an alternative, the Millians urge various nongovernmental institutions to adopt the sort of content-neutral policies that First Amendment jurisprudence requires of the government. The resulting “culture of free speech” they envision is one in which employers hire, fire, and promote without regard for employees’ opinions on controversial societal issues; universities take no cognizance of students’ opinions in deciding whether to admit and retain them, social media platforms make no discriminations about the content they host; and other businesses and organizations likewise refrain from discriminating on ideological grounds. Because, as we will see, such policies of neutrality are rarely tenable, those who aspire to such a free speech culture come to see their aspiration as a noble but unattainable ideal. They are led to the conclusion that freedom of speech cannot be an absolute – that is merely one value to be traded off against others.

Freedom of speech is a right – “a moral principle defining and sanctioning a man’s freedom of action in a social context.” 3 Rights can be violated by private actors as well as by governments, and the government’s function is to secure rights against such violations. Some of the nongovernmental actions decried by professed champions of free speech are violations of the right to free speech, but most are not – quite the reverse: they are exercises of this right. A genuine culture of free speech is one in which these acts are recognized as instances of free speech, rather than departures from it. It is a culture in which individuals value one another’s freedom not only to express opinions but to judge them, and to decide whom to associate with (or disassociate from) on the basis of such judgments. It is a culture in which individuals guard this freedom and utilize it to satisfy their needs for both ideological diversity and ideological alignment , forming a wide range of relationships, institutions, and communities with different purposes and different terms of association.

This is what I argue in this essay. In the first section, I elaborate on the nature of free speech as an individual right. In the second, I discuss government’s responsibility to respect and secure this right. In the remaining two sections, I discuss the value of intellectual diversity and the idea of a culture of free speech, rejecting the prevailing, collectivist approach to these issues and articulating an individualist alternative.

Freedom of Speech as an Individual Right

On the evening of May 25, 1892, a mob ransacked the offices of the Free Speech , a Memphis newspaper run by Ida B. Wells and James L. Fleming. The mob ran “Fleming out of town, destroyed the type and furnishings of the office, and left a note saying that anyone trying to publish the paper again would be punished with death.” 4 Wells describes the personal impact this way: “They had destroyed my paper, in which every dollar I had in the world was invested. They had made me an exile and threatened my life for hinting at the truth.” 5 The “hint” she mentions had come five days earlier, in an editorial she had written about the lynchings of eight black men over the course of the preceding week. Some of these men had been killed on the basis of “the old thread-bare lie that Negro men assault white women,” and she warned that if the white Southerners continued to use this pretext for lynchings, “public sentiment will have a reaction; a conclusion will then be reached which will be very damaging to the moral reputation of their women.” 6 On the morning of May 25, the Daily Commercial responded in an editorial that purported to speak for the white population of Memphis: “we have had enough” of “the fact that a black scoundrel is allowed to live and utter such loathsome and repulsive calumnies.” Later that day, the Evening Scimitar (which assumed that Wells’s editorial had been written by a man) proposed a course of action:

If the negroes themselves do not apply the remedy without delay it will be the duty of those whom he has attacked to tie the wretch who utters these calumnies to a stake at the intersection of Main and Madison Sts., brand him in the forehead with a hot iron and perform upon him a surgical operation with a pair of tailor’s shears. 7

Freedom of speech is freedom from the evil that was perpetrated against Wells, Fleming, Paty, Rushdie, and Charlie Hebdo staff, and against everyone who was terrified into silence by their attackers. This freedom consists in being able to speak one’s mind without fear that others will respond forcibly against one’s person or property. In the cases we have discussed, the force was wielded by terrorists; too often (as we’ll discuss) it is wielded by governments.

Force needn’t be deadly to violate the freedom of speech. Had Paty and Rushdie’s assailants sought merely to injure them, as punishment for speaking their minds, the same principle would have been violated, and others like Paty and Rushdie would still have been put in fear for their safety. Likewise, the mob that ransacked Wells and Fleming’s office would have violated their freedom of speech even if they hadn’t also threatened their victims’ lives. Wells and Fleming were violated when the mob destroyed the property they had devoted so much of their lives to creating. Their freedom of speech, in particular, was violated because the specific property that was destroyed – the paper’s type and furnishings – was their means of promulgating their ideas.

This same principle applies, though on a smaller scale, when self-styled “protesters” disrupt speeches they disapprove of. The venues for such speeches have generally been obtained by the speaker (or some sponsoring organization) for the purpose of hosting the speech, and others are admitted as an audience to hear it. To abuse one’s admission by disrupting the event is to trespass and to forcibly prevent the speaker (and sponsors) from using the means which are rightfully theirs for disseminating their ideas. The principle applies also when protesters forcibly interfere without entering the venue, as by creating excessive noise from an adjacent property to drown out the speaker or distract the audience. These actions too constitute forcible interference with the speaker’s use of his property to disseminate his ideas.

All the actions I’ve described as violating the freedom of speech would be violations of the victims’ rights even if taken for some purpose other than silencing them. Murder, vandalism, trespass, intimidation, harassment, and the interference with people’s peaceful enjoyment of their property are violations of rights, regardless of the motive, and the right to free speech doesn’t afford speakers any special protection that they would have lacked had they remained silent. No one is entitled to initiate force against anyone in the first place, and everyone has a right to be secure in his person and property. The right to free speech is merely the recognition that voicing an opinion as such never infringes on anyone else’s rights. The rights to liberty and property include the liberty to share one’s opinions and to use one’s resources to disseminate those opinions – e.g., by publishing a newspaper or delivering a lecture in a rented hall.

One person’s rights cannot be violated by another’s refusal to deal with him. Rights are principles for organizing society to enable individuals to interact only consensually, rather than by forcing themselves on one another. An interaction is consensual when each party participates voluntarily, under no threat from the other (except the “threat” of withholding such benefits as might result from the interaction). 12 The fundamental principle underlying free societies is that all relationships should be consensual – that no one may initiate the use of force, and that force may only be used in retaliation.

A right is a principle defining and sanctioning an individual’s freedom of action in a social context . 13 Freedom means freedom from other people who might interfere with one’s actions. So, what rights define is the scope of an individual’s freedom to act unilaterally, without others’ consent. Since rights are reciprocal, rightful actions cannot constitute interference with, or require the cooperation of, others. “Any alleged ‘right’ of one man, which necessitates the violation of the rights of another, is not and cannot be a right.” 14 The only obligation one person’s rights can impose on another is that of noninterference. Thus a person’s right to free speech cannot require other people’s participation as sponsors, enablers, or audience. It cannot entitle him to use their property as a platform or to harass them (demanding a hearing that they do not consent to give him). He has the freedom to express his ideas to an audience that’s willing to listen in a forum he owns (or that he uses with the owner’s consent). The right cannot be violated by anyone’s refusing to contribute to, listen to, or otherwise condone the relevant speech (even by refusing to continue associating with the speaker). The right cannot be violated by any form of boycott, blacklisting, ostracism, “cancellation,” or other social penalty. 15 The right can be violated only by initiating force against the speaker (including against his property). Whether such social penalties are just or unjust in a given case, any claim by the penalized that his rights have been violated is simply his assertion of an imagined right to force himself on people who want nothing to do with him.

For example, consider what Ida Wells came to think was the ultimate motive for destroying the Free Speech :

For the first time in their lives the white people of Memphis had seen earnest, united action by Negroes which upset economic and business conditions. They had thought the excitement would die down; that Negroes would forget and become again, as before, the wealth producers of the South – the hewers of wood and drawers of water, the servants of white men. But the excitement kept up, the colored people continued to leave, business remained at a standstill, and there was still a dearth of servants to cook their meals and wash their clothes and keep their homes in order, to nurse their babies and wait on their tables, to build their houses and do all classes of laborious work. […] The whites had killed the goose that laid the golden egg of Memphis prosperity and Negro contentment; yet they were amazed that colored people continued to leave the city by scores and hundreds. In casting about for the cause of all this restlessness and dissatisfaction the leaders concluded that the Free Speech was the disturbing factor. They were right. They felt that the only way to restore “harmony between the races” would be to get rid of the Free Speech . 16

This example highlights the power of disassociating from others as a means of both punishing injustice and protecting oneself from it. Disassociation is especially powerful when practiced by a large group, as in a boycott or blacklist. If an individual has any rights at all, he has this right to disassociate for any reason, including disagreement with another’s speech. The individual doesn’t lose this right when there are many others exercising it along with him, or when he encourages others to do so (as Wells did in her newspaper). 17 In short, there is a right to participate in what is now called “cancellation.”

Perhaps the most influential denier of the right to disassociate from others on the basis of their opinions is John Stuart Mill. This makes Mill an influential opponent of the right to free speech. 18 His reputation as a stalwart champion of free speech rests on his insights about an independent thinker’s need to engage with a wide spectrum of ideas – something that cannot be done in an environment where heterodox opinions are not expressed. I’ll turn to these aspects of Mill’s thought in the final two sections of this essay. What’s relevant for my present purposes is that he denies the crucial distinction between violations of the right to free speech and social sanctions of unpopular opinions (which sanctions are, in fact, exercises of this right).

The principle of individual rights marks the distinction between consensual interactions between individuals and interactions in which some individuals force themselves upon others. The fundamental right – the right to one’s own life – defines and sanctions the individual’s “freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life.” 22 This means the individual’s freedom to live by his own judgment, using (and developing) his own means in support of his own ends (while respecting others’ freedom to live likewise). The freedom of speech is the freedom to express one’s opinions in the course of leading such a life. This includes one’s freedom to associate with others in support of their speech or to withdraw one’s sanction from their opinions by disassociating with them (in whole or in part). Conversely, the right to freedom of speech does not give everyone with anything to say a license to force himself upon those who do not wish to be his audience, his promoters, or his enablers. This is true however large the proportion of society that does not wish to deal with him and however unjust or imprudent their attitude may be.

Freedom of speech is never a license to violate other rights. Threats and incitement to violence no more fall within the protection of this right than do the instructions a mafia boss gives to a hitman. They may express or imply an opinion (as do all utterances, publications, and actions), but their essence is to initiate or facilitate a course of action, rather than to participate in an exchange of ideas. This is true of the passages quoted earlier from the Daily Commercial and Evening Scimitar that called for Wells’s lynching. These are not mere expressions of opinion: they are conspiracy to murder and mayhem. 23 The same applies to social media posts that targeted supposed blasphemers like Paty for attacks by Islamist terrorists. 24 Khomeini’s fatwa against Rushdie amounted to an act of war against the free world, and it ought to have been treated as such by world governments. 25 No doubt there are cases where it is difficult to determine whether an utterance is essentially an expression of an opinion (which would fall within the protection of the right to free speech) or constitutes a threat, fraud, defamation, harassment or other initiation of force (which would fall outside the realm of free speech). 26 But the difficulty in such cases is not a matter of balancing free speech against other potentially conflicting rights or interests. It is, rather, a matter of determining the nature of the utterance, given the full context in which it was made.

Commenting on the events at Berkeley, Ayn Rand wrote:

[T]here is no justification, in a civilized society, for the kind of mass civil disobedience that involves the violation of the rights of others – regardless of whether the demonstrators’ goal is good or evil. The end does not justify the means. No one’s rights can be secured by the violation of the rights of others. […] The only power of a mob, as against an individual, is greater muscular strength – i.e. , plain, brute physical force. The attempt to solve social problems by means of physical force is what a civilized society is established to prevent. 30

A society is free to the extent that it is governed by the principle of individual rights, and the freedom of speech is nothing more or less than individuals’ right to be free from forcible interference in (or in retaliation for) their expression of their ideas. Mobs like those that Rand describes (and which we see again proliferating throughout American society) are instances of such forcible interference with individuals’ freedom to speak and to live.

The Government’s Responsibility to Respect and Secure the Right to Free Speech

Because freedom of speech can be violated only by the initiation of physical force, which always violates other rights as well, special laws are not generally needed to secure this freedom. It is secured, rather, by the general laws that protect us from attacks on (and threats to) our persons and property. 31 When governments fail to protect the right to freedom of speech from infringement by private parties, it is by failing to prosecute those parties for violating these other laws – a topic we’ll return to later. Because separate laws are not needed to protect free speech from private actors, and because governments themselves often violate this right, free speech is sometimes characterized specifically as a right individuals hold against the government. Onkar Ghate, for example, has described free speech as “an individual’s right to express his ideas without governmental interference, that is, without governmental suppression or censorship.” 32 Such characterizations are natural especially in the United States where so much of the discussion of free speech centers on the First Amendment.

As should be clear from the previous section, I conceive of the right more broadly as a right to be free from forcible interference in (or in retaliation for) expressing one’s ideas, whether this force is initiated by a government or by private actors. However, much of the need to conceptualize it as a distinct right comes from the fact that governments so often pass laws abridging it. To defend the right, we must be on guard against the confusions and rationalizations that lead lawmakers and their constituencies to think it is proper to wield force to silence people, or to compel them to support or refrain from supporting the expression of certain ideas.

In all such fields, the only position consistent with the right to free speech is abolitionism. The entire public education system (including public financing of higher education) should be abolished, as should such agencies as the National Institutes of Health and the National Science Foundation. This abolition could take the form of simply eliminating the present institutions in the expectation that private ones will arise (or expand) to perform those of their functions that are legitimate. Or it could take the form of privatizing the existing institutions by cutting them off from governmental funds and authority. Presently there is no political constituency for abolition (of either sort). This unhappy fact gives rise to many questions for advocates of free speech: Of the various policies these institutions might adopt on various issues, which are most oppressive, and which are less so? What near-term goals and strategies should a movement advocating freedom in education (or scientific research) adopt? How should an individual teacher, student, or researcher navigate the existing system? These are all questions about how to navigate and mitigate an ongoing violation of individual rights, and they must be regarded as such if we are to have any hope of answering them in a way that is consistent with the principle of free speech.

In addition to violating freedom of speech by censoring and by establishing opinions, a government also violates the freedom of speech when it restricts individuals’ freedom to disassociate from speech and speakers they disapprove of. Consider, for example, the recent Florida and Texas laws (currently under judicial stays) that prohibit social media platforms from removing or deemphasizing users or posts based on their viewpoints. 37 Under the pretext of defending users’ free speech, the laws compel the companies to promote, participate in, or condone speech that they have every right to disassociate from.

Governments can also violate the right to free speech by exercising their legitimate powers in a way that discriminates against individuals for holding or voicing certain opinions. A government violates freedom of speech, for example, if it enforces noise ordinances more vigorously against people who are noisily expressing unpopular opinions than it does against people who noisily express favored opinions.

In addition to actively violating individuals’ freedom of speech in any of the ways we have discussed, governments are sometimes complicit in violations by private parties. This happens when a government fails to vigorously prosecute those who initiate force to silence others, thereby allowing these criminals to impose a reign of terror over those who disagree with them. Such governmental inaction can be motivated by officials’ (or voters’) sympathy with the terrorists. This is likely what happened in the attack on the Free Speech in Memphis. As far as I have been able to ascertain, no one was prosecuted for that attack, just as no one was prosecuted for committing the lynchings on which the Free Speech had reported. Wells believed there was no prosecution because “every white man of any standing in [Memphis] knew of the plan and consented to the lynching,” and that “the criminal court judge himself was one of the lynchers. Suppose we had the evidence; could we get it before that judge? Or a grand jury of white men who had permitted it to be?” 40 If Wells’s belief was correct, then it was not just a private mob, but also the municipal government of Memphis, that was responsible for murdering the lynched men and for destroying the Free Speech .

To protect our rights, including freedom of speech, governments must vigorously investigate potential conspiracies to violate these rights, whenever reasonable suspicion exists. However, such suspicion often arises in connection with organizations, movements, and subcultures devoted to controversial opinions – just the sorts of group whom we have reason to worry that the government will persecute on the grounds of their heterodox opinions. Examples in American history include the Ku Klux Klan, the American Communist Party, various factions within the civil rights movement and the countercultural movements of the 1960s and ’70s, and certain mosques and other institutions serving religious minorities. These organizations have been subject to investigation and counterintelligence operations by the Federal Bureau of Investigation, and there is a well-documented record of abuses on the FBI’s part, which makes civil libertarians rightly concerned about such investigations. 45 To prevent abuses, procedures must be established to ensure that investigations of heterodox groups are indeed investigations (rather than attempts to harass or influence the groups) and that they are properly predicated on evidence (in accordance with standards that are applied uniformly to all ideological communities).

Defenders of free speech should not engage in knee-jerk calls for, or reactions against, investigations into heterodox groups. What is needed here, as in all areas of law, is objectivity – which means well-defined methods and standards for such investigations and prosecutions, and legal remedies for those who have been unjustly targeted. In the quest for such objectivity many difficult questions will arise, but these questions are not specific to freedom of speech. They are persistent concerns throughout the structure of a justice system wherever prejudices, ideological or otherwise, may lurk. For example, even when freedom of speech is not involved, prejudices can lead authorities to overlook (or underprioritize) crimes against members of disfavored groups or to infringe on the rights of suspects from these same groups. When forming any legal system, such concerns can be addressed by erecting checks and balances of various sorts, but that doesn’t mean fundamental rights such as the right to free speech are being balanced against one another. Rather it is governmental resources and the incentives and powers of various investigative bodies and legal parties that must be balanced in order to preserve the rights of all concerned.

The right to freedom of speech (like any other right) does not create a zone of anarchy in which a government may not function or investigate. 47 Rather, the right defines a zone in which an individual may act unilaterally, and it obligates government to take all necessary actions to secure the individual’s freedom of action against forcible interference by others. 48 The government’s function requires it to operate everywhere within a society, but to do so in single-minded pursuit of its proper function, constrained by well-defined rules ensuring that, in endeavoring to protect one individual’s freedom, it does not intrude on anyone else’s.

Because the proper function of government is limited to securing rights, any government that transgresses this limit (e.g., by providing services such as education, transportation, or healthcare) necessarily violates rights. We’ve discussed how the government specifically violates the freedom of speech when it provides services that involve the promulgation of ideas, such as public education, public broadcasting, or the public financing of research. It also violates rights when it operates public spaces where people can congregate to discuss and disseminate ideas. Since the government is an agent of everyone in the society, the use of governmental resources to facilitate any speech by private parties, violates dissenters’ right to disassociate from that speech. This rights violation is compounded when a government favors the dissemination of some ideas over others. Therefore, the First Amendment is properly interpreted to demand ideological neutrality from the government in such matters as deciding what sorts of speech are permitted on public property.

By contrast, private individuals (or nongovernmental institutions) do not limit anyone’s freedom of speech when their policies lack the ideological neutrality we rightly demand of the government. Publishers, broadcasters, social media companies, and private educational institutions do not infringe on anyone’s freedom when deciding to whom they will grant or deny use of their platforms. Likewise, employers, service providers, customers, and financiers cannot violate anyone’s freedom by their decisions to deal with some parties and not others. This is true even when these decisions are made on ideological grounds, and even when they are made unjustly. Far from being infringements of free speech, such decisions are alwaysexercises of this freedom, since the freedom to speak includes the freedom to support speech of which one approves and to withdraw one’s support from speech (and speakers) of which one disapproves. Even foolish or unjust policies adopted by nongovernmental actors concerning speech fall squarely within the right to free speech, in the same ways and for the same reasons that false or unjust speech falls within the protection of this right. Because of this, any use of state power to compel or encourage private institutions to adopt a policy of ideological neutrality violates the right to free speech (and the First Amendment to the U.S. Constitution).

The Value of Intellectual Diversity

Among those who grasp that private individuals and institutions have the right to engage in ideological discrimination, many still think that there is some moral imperative for employers, and such institutions as social media companies, communications utilities, financial institutions, and private universities to nonetheless observe something like the ideological neutrality that the First Amendment demands of government agencies. It is widely held that institutions that value free speech should abstain from discriminating among their associates (employees, customers, partners, etc.) on the grounds of their opinions, because upholding ideologically neutral terms of association will foster diversity and a culture of free speech(both within the relevant institution and in the larger society of which it is a part).

This is a mistake. It is true that ideological diversity is valuable in many contexts, and there may be some specific organizations whose missions would be best served by a policy of ideological neutrality, but general presumptions in favor of such policies drop the context that gives rise to this value and amount to demands that organizations sacrifice their missions. Rather than being moral absolutes, intellectual diversity and welcoming heterodoxy are potential values to be traded off against others in crafting worthwhile associations. Using the term “free speech” for these suggests that free speech itself – the right to free speech – is not an absolute, but just one of many competing claims that must be pragmatically balanced against one another. In order to defend actual free speech, therefore, we must conceptualize intellectual diversity and the practice of welcoming heterodoxy as values distinct from this principle.

We can begin by considering John Stuart Mill’s eloquent account of why we each need to be conversant with ideas very different from our own:

He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion . . . Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them . . . He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty. 49

Mill’s point is that for one’s convictions to constitute knowledge, as opposed to mere opinion, one must have engaged with the arguments against those convictions, and doing this requires encountering the strongest of these arguments presented as powerfully as possible by sincere advocates. This implies that any context in which a particular view has been wholly excluded from consideration is destructive to knowledge, even in cases where the excluded view is false . Such contexts undermine one’s ability to form genuine knowledge. (The situation is even worse, of course, if the excluded view turns out to be true.) Since knowledge requires considering contrasting ideas, a knower requires an intellectually diverse environment.

Moreover, since reasoning requires following the evidence wherever it leads, genuine reasoning is incompatible with the attempt to uphold any dogma. Someone whose thinking is governed by the premise that she must reach a certain conclusion and not another, or that she must not question a certain premise, is not endeavoring to know what’s true. Only free thinking – where the range of admissible conclusions hasn’t been fixed in advance – is genuine thinking. A person cannot, therefore, function as a thinker insofar as she is dependent on maintaining a position within a social institution, which position is contingent on her reaching (or not reaching) specific conclusions.

All the values we seek from human relationships derive ultimately from the thinking of each party. This is true for every sort of association – for business partnerships, commercial transactions, employment relations, friendships, marriages, clubs, educational institutions, etc. All genuine thinking is thinking for oneself , and it is to be expected that differences of opinion will emerge when individuals think for themselves, even on issues where only one answer can be correct. Thus, disagreement is inevitable in any worthwhile relationship or organization, and people cannot work well or live well insofar as they depend on associations that are contingent on their toeing a party line. This is why social environments that welcome differences of opinion are valuable: they support independent thinking, which is the source of all the values we seek to gain from one another.

Such an intellectual environment is a value to each of us as individuals, and we must each pursue it in our own associations and in the context of all our other values – a context that includes the value of the uniformity of opinion that underlies any joint endeavor. However, the values of intellectual diversity and welcomeness to heterodoxy are generally discussed in collectivistic terms and in a way that drops this crucial context. Institutions such as schools, social media companies, providers of financial and communications services, and employers are regarded as societal resources which must be run in certain ways to fulfill a societal need to welcome (or tolerate) heterodoxy. This is the view that generally lies behind the calls for such institutions to embrace “free speech.” I will discuss some of the controversies regarding “free speech culture” and the policies of such institutions in my next section. But let’s first consider how we as individuals living in a free society might pursue the value of an intellectual environment that exposes us to diverse ideas and that welcomes any heterodox conclusions we may reach.

Each of us has much to gain from interacting (directly or indirectly) with people who hold ideas with which we disagree, and therefore we each have reason to support, patronize, or participate in institutions (schools, forums, social groups, libraries, etc.) that enable such interactions. However, individuals will differ in their specific needs for intellectual diversity and how these needs relate to their other values and concerns. We should, therefore, expect there to be a variety of institutions catering differently to different people in different contexts.

For example, a biology researcher will want access to a library or bookstore stocked with a wide range of books in her field, including many that she disagrees with. She’ll likely be more interested in disagreements of detail (e.g., about the evolutionary history of a specific organism) than in works advocating for creationism, phrenology, or race science, but she’ll want access to these, too, on occasion. She may, however, want works expressing some of these views to be excluded from the library she visits with her child. She’ll likely prefer to work for an employer who welcomes the forthright expression of disagreements on scientific issues, but she may find certain approaches to biological research so misguided that she sees no point in working for or with their proponents. Because she’ll be motivated to work with those collaborators who can most help advance her research, she probably won’t be much interested in their political or social views, and she’ll probably prefer an employer who doesn’t generally discriminate on such grounds, because she knows such discrimination could prevent her from working with people who might have a lot to offer. However, she may find certain views so abhorrent that she’d prefer a workplace that excludes their proponents entirely. When she’s looking for an advocacy organization or political party to join, she might prioritize robust ideological alignment; but she may be (largely or wholly) unconcerned with the political, social, or religious views of her grocer or swim instructor. There are different purposes for which our biologist might want to use social media – to connect with colleagues in her field, to monitor current events or follow the debates of the day, to connect with old friends and share anecdotes, etc. For different uses she might prefer different sites with different content policies.

Every individual will form some such constellation of values and attitudes, placing different weight on uniformity or diversity of opinions in different contexts. Some constellations of values will be irrational, unjust, and self-destructive. But many different constellations will be fully rational, especially if held by people in different circumstances with different levels of knowledge, different resources, and different goals. Among those constellations that are less than fully rational, some will go wrong in relatively small ways, whereas others will be foolish and vicious. If all these individuals with their different constellations of values concerning ideological alignment and diversity are secure in their rights, such that each can choose to deal with each of the others or not, they will be able to use this freedom to negotiate terms of association that work for them.

Thus, in a free society, we should expect different organizations and institutions to emerge reflecting different values. Since (for the reasons Mill well described) knowledge requires some engagement with the full range of opinion on contentious subjects, those who value knowledge will create market demand for libraries, bookstores, and forums of various sorts that enable access to and dissemination of even the most disfavored views. But other forums will try to avoid offending anyone, and there will be everything in between.

Every cooperative endeavor presupposes specific points of agreement. For example, if our biologist seeks a collaborator for a research project on a specific organism’s evolutionary history, a Young Earth creationist wouldn’t be suitable, because the project presupposes the theory of evolution. Her project will also presuppose many more specific premises about the outlines of life on earth, about the specific species she’s studying, about which research methods are promising, etc., and someone who disagrees with these presuppositions would not be suitable. This is true even though, as a biologist, she might benefit from being exposed to challenges to her presuppositions. If she lived in a society in which the theory of evolution was forcibly insulated from criticism, that would make it difficult for her to know that the theory is true (because she would be prevented from finding, engaging with, and evaluating the best arguments against the theory). Likewise, if despite living in a society with evolution skeptics, the biologist never gave a moment’s thought to their view (and, in this case, it doesn’t take much more than a moment), she may not be justified in her confidence in the presuppositions of her field. The same holds for the more specific presuppositions of her specific research project, many of which are bound to be controversial within her field. For her to be rationally confident in her own position, she needs to be free to learn about and consider alternatives, and she needs to take advantage of that freedom. But part of taking full advantage of that freedom is rejecting alternative approaches which she thinks are mistaken and building a research project based on the ideas and methods she judges to be right. As we’ve framed the example, pursuing this project will require finding a like-minded collaborator who agrees with her on the relevant points.

Just as her project would be undermined by a collaborator whose ideas were inconsistent with the biological premises underlying her project, so would it be undermined by a collaborator whose opinions prevented him from interacting with her respectfully. His viewing her as incompetent or dishonest would make him unfit for the role. This is true whether he views her this way because of some specific belief about her as an individual, or because he holds some such generalization as “women are no good at science,” or “white people are exploiters,” or “only researchers who studied at Harvard understand punctuated equilibrium.” Our biologist cannot afford to be indifferent to potential collaborators’ opinions on such matters, and there is not always a bright line to be drawn between such opinions and related political, religious, or ideological convictions. Of course, the biologist’s project could also suffer if she rejects a potential collaborator because she falsely infers from his membership in a certain church or preference for a certain political candidate that he won’t respect her or share the relevant scientific convictions.

In choosing a collaborator, she needs to find someone who agrees with her about what’s needed to further the project, and she needs to allow such disagreements as are compatible with (and conducive to) this joint undertaking. Just which disagreements fit this bill will depend on innumerable factors, some of which may be idiosyncratic to the people involved. For example, if the biologist and potential collaborator have especially good interpersonal skills, they may be able to work together despite certain disagreements that would doom another pair of collaborators. Similarly, a pair of collaborators who are especially good at resisting confirmation bias might be needlessly slowed down by internal disagreements of a sort that another pair might need to help them avoid this cognitive pitfall.

There is no principle demanding that our biologist close her eyes to a potential collaborator’s opinions (or any special subclass of his opinions), nor would it be prudent for her to do so. The relevant principles are that she cannot rationally expect any collaborator to agree with her on everything or on nothing , and she should not place more value on any agreements or disagreements than is warranted by the full context of her own values, purposes, and circumstances.

Everything we’ve said about this one researcher’s relation to a potential collaborator applies also to all of the relationships inherent in any large organization – such as a business, a university, or a social network. Each such organization has its own mission and values, which must be implemented in its policies and corporate culture if it is to be successful. And each individual associated with the organization will approach the association from the standpoint of his own hierarchy of values. An organization that demanded too much agreement would have trouble finding and attracting suitable associates, and those it did attract would be unable to do their best work. But an organization would also undermine itself by welcoming associates whose opinions are incompatible with its purpose and values. For any organization, there will be opinions that are directly incompatible with the organization’s mission – as, for example, opposition to abortion rights is incompatible with the mission of Planned Parenthood, and atheism with the mission of the Catholic Church. There will also be opinions that are incompatible with the sort of corporate culture the organization regards as necessary to its mission. For most organizations this will include a culture of mutual respect that could be undermined, for example, by the opinion that people of African descent are stupid or that people of European descent are oppressors.

For almost any role in any group or organization, there are things that someone would be within his rights to say, but that would make him unsuited for that role, such that the organization could not tolerate this speech without undermining its purpose. Such speech is within the person’s rights in that it would be wrong for anyone (whether a governmental actor or a private party) to forcibly prevent him from saying it. But this right does not obligate the organization to allow the speech on its platform or to associate with the speaker. For example, many social media sites that fancy themselves free-speech forums do not allow users to post pornographic content, even though such content is (properly) legal. And it makes sense for the platforms to exclude pornography, given the sorts of communities they’re trying to build. Likewise, a law firm may have strong reasons not to retain an associate who has publicly voiced sympathy with the October 7 attacks on Israel – doubly so if it serves many Jewish clients who would interpret these remarks as antisemitic (as well as generally vile). 51 And a university may not wish to employ a teacher whose racist remarks (voiced outside of class) raise questions about her ability to treat all students with respect and judge them objectively. All of these potentially disqualifying sorts of speech fall within the speaker’s freedom of speech, in that it would be wrong for governments or private individuals to retaliate against them forcibly. But in each case, there’s a reason for the organization to make such speech grounds for disassociation. In some cases, there are also reasons pulling in the opposite direction.

Because organizations differ in their missions and constituencies, it should be expected that they will adopt different policies and develop different cultures, with some welcoming a wider range of opinions than do others. There are some approaches to this issue that would be irrational, unjust, and self-defeating, but there are a range of different approaches by which organizations could rationally pursue a valid mission and attempt to attract and retain associates. How wide a range of opinions an organization welcomes among its employees or associates (and what policies it institutes regarding expressions of these opinions in various contexts) no more reflects its degree of commitment to free speech than the variety of a retailer’s wares reflects the degree of its commitment to free trade.

Such variation in the policies and cultures of organizations is an expression of the freedoms of speech and association and a consequence of the pursuit by free individuals of their values. These values include (but are not limited to) the value of an environment that welcomes and fosters intellectual diversity. It is up to each of us to exercise these freedoms to seek these values for ourselves.

Individualists who share Mill’s concerns about an intellectually stifling uniformity of opinion can work to create new institutions (institutes, businesses, universities, libraries, journals, grant-making bodies, etc.) to foster heterodoxy. There are many forms such institutions can take. For example, there are organizations, like the Ayn Rand Institute, dedicated to promoting specific ideas (or research programs) that lie outside the ideological mainstream. A heterodoxy-promoting individualist might support the work of some such organizations, because he thinks their ideas (whether he agrees with them or not) fill an important gap in the discourse. Our heterodoxy-supporting individualist could also support publications like the Journal of Controversial Ideas that try to provide a home for ideas that have little in common except for falling far outside of the mainstream in one direction or another. 52 Or he could try to forge an institution that facilitates exchange between people of differing viewpoints, making room for marginalized views without catering specifically to them. Examples of this approach include Discourse magazine, the Academy of Ideas (https://academyofideas.org.uk/), and the new University of Austin.

Finally, the individualist looking to support intellectual diversity can work to create institutions that facilitate the wide and rapid sharing of content, so that speakers of all sorts can more easily connect with an audience. By any measure, the most historically successful initiative of this last sort is the internet. The World Wide Web and most of its social media platforms were created by people who were motivated in part (at least) by the idea of empowering a wider range of people to share and discover ideas.

Anyone worried about a lack of intellectual diversity today should reflect that no person in history has had as easy access to as wide a range of ideas as anyone can find for free on YouTube, X or Reddit. Many of the people today who resent mainstream cultural institutions for marginalizing the opinions they’ve been exposed to on social media would have, in earlier eras, remained wholly ignorant of opinions outside of the mainstream. The specific currents of censoriousness in the world today are largely caused by the ease of exchanging ideas online. Some are backlashes by cultural elites against the mainstreaming of previously marginal streams of thought. Others, such as the “Twitter mobs” that have called for the hasty “cancellation” of those who offend against various au courant leftist strictures, are made up of scolds who have organized through social media to exert social pressure that would not have been possible to them in the past. These forms of censoriousness (however unjust some of them may be) are aspects of an intellectually diverse society, rather than signs that we lack one.

A Culture of Free Speech

I have treated intellectual diversity (and the sort of environment that fosters it) as one value among others that free individuals can pursue in their associations with one another. But, as I mentioned earlier, most discussions of this value proceed as if the needs of society as a whole place special obligations on certain societal institutions to embody or foster a “culture of free speech.” To develop an individualist alternative, I’ll focus on two sorts of institutions that have loomed large in recent free-speech controversies: social media platforms and universities. I’ll expose the collectivist premises dominating thought about these institutions and I’ll explain the individualist perspective on these issues – the perspective that, when embodied in a society’s institutions and mores, constitutes a genuine culture of free speech.

It is striking that Musk, who prides himself on his “first-principles thinking” in business, did not define the “free speech principles” to which he thinks Twitter should adhere. The nearest thing I have found to a public exposition of these principles in the months surrounding the acquisition is this statement:

By “free speech,” I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people. 55

This is no principled stand at all. It simply says that the platform shouldn’t “censor” – i.e., refuse to provide a platform for – much legalcontent, without saying anything about how much or how this can be determined. 56 Notice too Musk’s indifference to the actual issue of free speech in his blithe acquiescence to limits on free speech imposed in accord with “the will of the people.” Of course, it is precisely such limits that the First Amendment prohibits. 57 The idea that the will of the people should determine how a social media platform operates reflects the collectivist premise that the platform, though legally held as private property, is essentially an organ of humanity as a whole, which must somehow be operated by humanity’s general will in the service of its collective good.

This same collectivist view dominates thinking about educational institutions and shapes discussion of speech there. The American Association of University Professors has long based its advocacy of “academic freedom” and the tenure system on the premise that “institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole.” 58 The Association acknowledges that there are some “proprietary institutions” whose purpose is “to subsidize the promotion of opinions held by the persons, usually not of the scholar’s calling, who provide the funds for their maintenance.” But it concerns itself only with “ordinary institutions of learning” whose purpose is “to advance knowledge by the unrestricted research and unfettered discussion of impartial investigators.” It holds that any such institution, whether run by the state or as nongovernmental entities, “constitutes a public trust” charged with carrying out a “threefold function”: (1) “to promote inquiry and advance the sum of human knowledge,” (2) “to provide general instruction to the students,” and (3) “to develop experts for the various branches of the public service.”

With universities as with Twitter, a supposed public function is thought to require institutions to provide people with a platform, regardless of the opinions they express. Because these non-governmental institutions supposedly serve a public function, they are expected to practice the sort of ideological neutrality that the law demands of government bodies. As a result, many of the individuals involved with institutions feel ill-used by policies that give them no option but to interact with people whose opinions they regard as odious, if they are to deal with the institution at all. And the institution’s interest in maintaining its relations with these aggrieved associates is at odds with its commitment not to discriminate against the speakers whom they find objectionable.

In the first instance, we see Musk’s collectivist conception of the need for intellectual diversity leading him to conclude that “free speech” cannot be an absolute. In the later episodes, we see his collectivist view of Twitter as a public good, leading to the demand that advertisers sacrifice by continuing to run ads there, regardless of whether they judge that these ads will benefit their companies.

The problems Musk faced in his attempts to operate a “free speech” platform are not new. In 2012, a decade before Musk’s purchase, Twitter regarded itself as “the free speech wing of the free speech party.” 66 It professed a “John Stuart Mill-style philosophy” according to which “the most effective antidote to bad speech was good speech,” and so they engaged in little content moderation. By 2017 they had come to regard this philosophy as naive and felt a need “to take steps to limit the visibility of hateful symbols, to ban people from the platform who affiliate with violent groups.” 67   In 2019, (then) CEO Jack Dorsey said, “I don’t believe that we should optimize for neutrality . . . . Ultimately, I don’t think we can be this neutral, passive platform anymore.” 68 During the same period, Facebook and YouTube also began to moderate content on their platforms more aggressively.

There are many questions about the wisdom of various decisions made by the social media platforms in this difficult time. There is also evidence that some of these decisions were coerced by government actors, which would certainly be a violation of the platform’s right to free speech and of the First Amendment. But even apart from such violations, these platforms faced a difficult challenge, which ought to have been understood and faced in individualistic terms, but which was too often misconceived along collectivist, Millian lines. Essentially these platforms are in the business of facilitating associations pertaining to speech . In particular, they connect content providers with audiences and advertisers. The naive Millian approach that many of these companies took prior to 2015 was not a matter of overvaluing “free speech” or diversity of opinion. Rather, it represented too crude a view of what makes the relevant associations valuable to all the parties involved – including the speakers, the audience, the advertisers, and the owners and employees of the platform.

Sadly, McKenzie couched this decision in terms of the Millian package-deal that equates demonetizing publications (a form of disassociation) with censorship and a lack of support for individual rights and civil liberties:

I just want to make it clear that we don’t like Nazis either – we wish no-one held those views. But some people do hold those and other extreme views. Given that, we don’t think that censorship (including through demonetizing publications) makes the problem go away – in fact, it makes it worse. We believe that supporting individual rights and civil liberties while subjecting ideas to open discourse is the best way to strip bad ideas of their power. We are committed to upholding and protecting freedom of expression, even when it hurts. 80

But, of course, no one has an “individual right” to Substack’s services if Substack doesn’t want to provide them, and Substack is no more respecting the Nazis’ liberty by continuing to serve them than it would be infringing on their liberty if it decided to kick them off the platform. The issue is not one of liberty, but of the company’s view that there is great value in a content-neutral platform where even the most odious ideas can be voiced.

What distinguishes Substack from failed companies that also imagined themselves to be providing “free speech” platforms is that Substack has managed to create a network of mutually beneficial interactions among the members of the many different communities it hosts. Consider by contrast the case of Parler. It billed itself as “the premier global free speech platform” and promised to host content that was not welcome elsewhere, but unlike Substack, which hosts a wide range of creators, Parler was never more than a ghetto for marginal voices on the political right. 81 It failed because it relied for all its essential services on companies like Amazon, Apple, and Google, which did not want to be party to the content it hosted. Those companies all withdrew their services in the wake of the storming of the U.S. Capitol on January 6, 2021, when Parler was becoming popular among members of the MAGA movement. 82 The companies wanted nothing to do with Parler, because they thought its lax content-moderation policies made it a vector for incitement to violence. Parler denied that violence was being incited on its platform and complained that it was made a scapegoat. 83 Even if it was treated unjustly, the fundamental cause of its failure was that it had not found (or, seemingly, even sought) a way to build the sorts of relationships necessary to sustain a service that platforms even stigmatized speech. All Parler had to offer the parties on whom it relied were Millian demands for sacrifices on the altar of the supposed rights of people whom these parties regarded as deplorable and dangerous.

By contrast, Substack has thus far managed to retain mainstream content while also hosting respectable radicals as well as sundry crackpots and bigots. Its approach to content-moderation and online association enables readers, advertisers, and commentators to associate with the content that interests them without having to sanction content that they deplore – except in the very minimal sense of not boycotting Substack for continuing to provide services to the deplored customers. Creators’ willingness to deal with Substack on these terms doubtless owes a lot to their recognizing (with Mill) the value of intellectual diversity, to their being tired of a “cancel culture” that regards many widely held views as beyond the scope of acceptable debate, and to their valuing the assurance that they will not be deplatformed if they offend against some trendy shibboleth. But the value they get from Substack lies not simply in its refusal to deplatform (even) odious speech, but in its having developed policies that facilitate the exchange of heterodox ideas, and in having fostered a diverse community of creators and consumers who support these policies.

Substack promotes intellectual diversity by facilitating individual customers’ individualistic pursuits, rather than by calling on them to sacrifice their own values for an alleged public benefit. The same is true of other social media platforms, including X, YouTube, Facebook, and Reddit. When they provide value, it is by facilitating relationships through which individuals can advance their own values, rather than by adhering to impracticable principles that purport to serve a greater collective good (but that produce only strife).

The disciplinary actions against Wax and Dean may be breaches of their contracts, and it may be wise for some institutions of learning to have tenure policies that protect faculty from suffering adverse employment consequences for expressing stigmatized opinions. But the AAUP’s position goes far beyond this. Recall its view that any educational institution not explicitly devoted to the promulgation of some narrow creed is duty-bound to have a tenure policy protecting “academic freedom.” On this view, no institution of higher education could morally take into account whether its faculty’s pronouncements make students feel unwelcome and unsafe, repel donors and parents, or otherwise conflict with the values people seek from their association with the institution. Either these people are also duty-bound to continue associating with the university (violating their convictions and sacrificing their interests) or else they are free to disassociate, but the trustees of the institution are duty-bound to let the institution be blackballed along with its most odious professors.

Far from being anomalous, Wax’s and Dean’s comments are precisely the sort of speech that “academic freedom” has always been intended to protect. The AAUP was founded by John Dewey and Arthur Lovejoy. The latter was one of five professors who had resigned their positions at Stanford in 1900 to protest the university’s dismissal of economics professor Edward Alsworth Ross – an affair that provided much of the impetus for the AAUP. Ross was an anti-capitalist bigot who would go on to argue that society needed to “muzzle” Jesuits and business magnates (whom he referred to as “men of prey”). 88 In a story about a mass meeting of citizens asking for “protection from the influx of Asiatic hordes,” the San Francisco Call and Post (of May 8, 1900) reports that Ross

declared primarily that the Chinese and Japanese are impossible among us because they cannot assimilate with us; they represent a different and inferior civilization to our own and mean by their presence the degradation of American labor and American life. We demand a protection for the American workmen as well as for American products. . . . And should the worst come to the worst it would be better for us if we were to turn our guns upon every vessel bringing Japanese to our shores rather than to permit them to land. 89

Jordan’s initial argument against firing Ross embodies the especially strong reasons universities have for valuing the sort of job security that makes faculty members comfortable exploring controversial opinions. And many do consider this episode a black mark on the university’s record. It is notable however that Stanford went on to become one of America’s premiere institutions of higher education. This may be despite Ross’s firing, or it may be in part because there were people (faculty, students, parents, and donors) who preferred to be affiliated with a university that didn’t harbor professors who would prefer to murder immigrants en masse than to admit them. Likewise, there are people today who would regard it as a selling point if a university’s faculty did not enthuse over the rape and murder of Israelis or demean students of certain races. Undoubtedly there are also professors who, though they may abhor some of these opinions, would prefer to work at a university where voicing them is not a firing offense; and there are students and donors who may regard the presence of faculty with such views as a bracing form of intellectual diversity.

Contra the AAUP, universities are not public trusts, and there is no single policy they should all adopt regarding the range of speech it will tolerate from its faculty or students. Rather, each university is a distinct community of faculty, students, and other interested parties. It is neither possible nor desirable to isolate the members of this community from the economic incentives that derive from the constellation of facts that lead people to value (or disvalue) the university. These facts include the professors’ expressions of their opinions on controversial issues. The trustees and administrators of each institution can and should craft policies (and an institutional culture) that shape these incentives in support of its specific mission. This mission isn’t a function the institution serves for the public at large, but a function it plays for the individuals who choose to associate with it in one capacity or another. Most notably, universities have students , and different universities may cater to different student populations with different needs and values. To choose an obvious example, a university that finds a niche educating the children of Japanese immigrants would be wise not to tolerate faculty like Ross, and one that caters largely to Jewish students would do well to stay away from Dean.

Most universities’ missions include making an impact of some sort on the world. For example, Stanford was founded

to promote the public welfare by exercising an influence in behalf of humanity and civilization, teaching the blessings of liberty regulated by law, and inculcating love and reverence for the great principles of government as derived from the inalienable rights of man to life, liberty, and the pursuit of happiness. 92

Such a mission doesn’t make a university a “public trust” in the manner that the AAUP imagines. Rather, the mission is a joint project of those individuals who choose to work together to pursue it. And this choice presupposes a common understanding (which may develop and alter over time) of the mission and how to advance it. Thus we should expect that even universities with similar missions may make different decisions about how to pursue intellectual diversity in the context of their other values.

For example, the University of Chicago and Princeton University have similar missions, and both claim to prioritize (what I am calling) welcoming heterodoxy. 93 But over the course of decades, they have adopted different policies and formed different cultures. The University of Chicago has a policy of “institutional neutrality” on social and political controversies. 94 Presidents of Princeton, thinking that universities are inherently value-laden, have argued that such neutrality is impossible or undesirable and so have instead favored a policy of “institutional restraint.” This has led Princeton to participate in some divestment campaigns that the University of Chicago did not, and to be more supportive of certain student protest movements. 95 Potential students, faculty, and donors are aware of such differences between universities and can consider them (in the context of all their other relevant values) when deciding which institution to affiliate with.

Whatever specific policies and attitudes a given university, social media platform, or other institution adopts, they will not constitute a culture of free speech unless those adopting them do so by self-conscious choice, owning the fact that they are individuals exercising their own rights in pursuit of their own values. This entails their valuing their right to make this choice, which includes valuing their right to choose differently .

An excellent example of this approach in a corporate setting is Coinbase CEO Brian Armstrong’s 2020 blog post in which he clarified the company’s culture and laid out norms for keeping divisive cultural and political issues outside of the workplace. 98 Though many of the considerations Armstrong cites in support of Coinbase’s policies apply to other organizations, and though he does not shy away from this, his post is not a manifesto for the corporate world in general or an argument that every organization should emulate Coinbase. It is instead a wise attempt to reach alignment with those who choose to deal with his company about the terms on which they will interact. Importantly, he acknowledges that other companies may have different cultures, and that employees who aren’t aligned with Coinbase’s approach may want to seek employment elsewhere.

Armstrong’s post epitomizes the mindset of a genuine culture of free speech. It is the opposite of the Millian demand that individuals and organizations sacrifice their convictions and values by adopting ideologically neutral policies of association that may be inconsistent with their values. Such demands are premised on the notion that universities, social media companies, employers, and other businesses (such as internet service providers, banks, etc.) are obligated to operate with the ideological neutrality that is required of governments. There is no reason why all or most organizations should commit to any such policies, and for many it would be self-defeating.

When free speech is lauded as a collective value, it is often because the exchange of ideas allows truth to be discovered and error abandoned. But it is the individualistic culture of free speech, rather than the Millian, collectivistic alternative, that in fact promotes the discovery of truth and the countering of error. Louis D. Brandeis famously wrote that the “remedy to be applied” for “falsehood and fallacies” is “more speech, not enforced silence.” 99 There is truth in this. When one thinks that there is a falsehood or fallacy that has gone unanswered, one does well to answer it. But often falsehoods and fallacies continue to be repeated and spread, in their original forms or with trivial modifications, despite having been soundly answered. The rational course here is to marginalize them, rather than to devote one’s days to Sisyphean refutations of the same fallacies. We have seen that marginalizing ideas by refusing to platform them (or even, in some cases, by refusing to associate with their proponents) is an exercise of free speech. Like other exercises of free speech, policies that promote or marginalize certain types of speech can be mistaken or unjust. The way to fight such wrongs is not to demand that the policies be replaced to serve a collective good. It is to practice better policies oneself, not as a duty to society but in furtherance of one’s own values and those of one’s associates. This can include a policy of disassociating oneself with those whose policies one regards as especially unjust.

As applied to the issue of association or disassociation, valuing free speech amounts to valuing the freedom to associate with or disassociate from others based on their opinions (and on their approach to disagreement). It is not to prefer content-neutral terms of association over ideologically robust ones.

In general, freedom includes the ability to disassociate from others , whether on the grounds of their ideas or for any other reason. To be free is to be free from others imposing themselves on one, so that all one’s associations are voluntary. Rights are the principles defining this freedom. They are recognitions of the conditions that human beings need in order to coexist within a society, and they are distinct from the terms of association defining more specific relationships or institutions within the society. Rights should structure society: they delineate the spheres in which each person’s reason reigns and define what is up to whom in cases of disagreement. Our rights set the background context in which we can choose whom to deal with and on what terms.

All the values we can gain from our associations with others are products of their thinking. One is only thinking insofar as one is thinking freely – allowing one’s thoughts to go wherever the evidence leads – and this will lead to disagreement sometimes. Therefore, we need to value disagreement as well as agreement, and make sure not to create a censorious environment in which a particular party line has to be toed. Rather, we need to value the expression of differences insofar as this is consistent with the kinds of agreements that are presupposed by the kinds of relationships we have.

The right to free speech (and the broader liberty from which it is inseparable) is necessary not merely to create wide-open forums where all ideas are welcome, but also to create narrow alliances based on robust shared convictions. It is needed also to enable every sort of association between these extremes. It is through relationships of all these sorts that liberty enriches our lives, and a true culture of free speech is one that recognizes and celebrates this, not one that parochially values ideological neutrality. Moreover, it is a culture that recognizes that the institutions within our society – the universities, the corner shops, the social media platforms, and the technological and financial infrastructure that underlies them – do not belong to us as a collective and do not exist for the sake of promoting some “public good.” Rather, these institutions belong to the specific individuals who create and sustain them (in myriad ways), and they exist for the sake of these individuals’ values.

There is such a thing as a culture of free speech, but it does not consist in any specific set of policies that a university, a publisher, a social media platform, a library, or a bookstore might adopt. Nor does it consist in ideological neutrality or welcoming of heterodoxy, for it can be embodied at least as fully by associations predicated on robust ideological agreements as by associations that are more welcoming of dissent. Wells and Fleming’s newspaper, the Free Speech , would not have been more aptly named if it had opened its editorial pages to those who condoned lynchings as well as those who opposed them. The paper was well named not because it was neutral, but because its editors were asserting their right to express their ideas (using their own resources), even in a context where they knew they might be met not only with disapproval, but with force .

In a true culture of free speech, even people who detest a speaker will rally in the face of such forcible attempts to silence him. Volunteers will step forward to provide any needed security, because it will be generally understood that everyone is violated when anyone is forcibly silenced. Attempted silencing will fail, because people will amplify the threatened speech, in the understanding that intimidation cannot succeed when people stand united against it.

Such a culture is not possible among people who imagine that freedom of speech requires – or even gently suggests – that we give a hearing or a platform to all speakers, regardless of the content of their convictions or of our own. To embrace free speech as a cultural value, we must understand that the right that is violated by the forcible suppression of speech is exercised when someone peacefully chooses to deny a speaker her support. We must grasp that freedom of speech is, like all freedom, an instance of the principle that human beings must deal with one another by reason and persuasion, rather than force. In order to live by this principle, we must be keenly aware of the difference between expressing one’s opinion and forcing oneself on others. It is this domain of peaceable expression that the right to free speech defines and sanctions. A culture of free speech is one in which individuals appreciate, utilize, and guard the full extent of this freedom.

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• Writers advocating a “free speech culture” in addition to the protections for free speech under the law include: Jacob Mchangama, Free Speech: A History from Socrates to Social Media (New York: Basic Books: 2022); David French, “Campus Free Speech Can’t Survive Cultural Change,” The Atlantic , March 2022, https://www.theatlantic.com/newsletters/archive/2022/03/campus-free-speech-cant-survive-cultural-change-emma-camp-self-censorship/676573/ ; David French, “You Can Say That: Preserving Free Speech from Political Correctness,” John Locke Foundation (YouTube channel), posted December 11, 2018, https://www.youtube.com/watch?v=RQF3HKcx52k&t=3065s ; Greg Lukianoff and Rikki Schlott, The Canceling of the American Mind (New York: Simon & Schuster: 2023), especially 293–313; Nico Perrino, “Free Speech Culture, Elon Musk, and Twitter,” FIRE blog, December 1, 2022,  https://www.thefire.org/news/free-speech-culture-elon-musk-and-twitter#:~:text=We%20need%20a%20free%20speech,ability%20to%20share%20our%20opinions ; Robert Tracinski, “We Need More Than the First Amendment, We Need a ‘Culture of Free Speech,’” Discourse , June 14, 2021, https://www.discoursemagazine.com/p/we-need-more-than-the-first-amendment-we-need-a-culture-of-free-speech ; Eugene Volokh, “Free Speech Rules, Free Speech Culture, and Legal Education,” Hofstra Law Review 51, no. 3 (June 2023); Nadine Strossen, Free Speech: What Everyone Needs to Know (New York: Oxford University Press, 2024) 9.
• On this aspect of the virtue of independence, see especially Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (Meridian, 1991), 251–59 and Tara Smith, Ayn Rand’s Normative Ethics (Cambridge University Press, 2006), 126–28).
• Ayn Rand, “Man’s Rights.” in The Virtue of Selfishness: A New Concept of Egoism (New York: Signet, 1964 Centennial edition), 110.
• Ida B. Wells, Crusade for Justice: The Autobiography of Ida B. Wells , 2d ed. (Negro American Biographies and Autobiographies) (Chicago: University of Chicago Press, 2020), 53.
• Wells, Crusade , 54.
• Ida B. Wells-Barnett, Southern Horrors: Lynch Law in All Its Phases , available online at https://www.gutenberg.org/files/14975/14975-h/14975-h.htm .
• Wells-Barnett, Southern Horrors ,5–6.
• Regarding the attacks on free speech by Islamists, see especially Steve Simpson, ed., Defending Free Speech (Irvine, CA: Ayn Rand Institute Press, 2016), and Flemming Rose, The Tyranny of Silence (Washington, DC: Cato Institute, 2014).
• “Rev. Nightingale had, in the meantime, withdrawn from the paper. He had trouble with his congregation and he wanted to use the Free Speech to flay those who had opposed him and wanted to get rid of him. When we objected to the articles he wrote abusing his enemies, who were our supporters, he withdrew and we bought out his interest.” Wells, Crusade , 36.
• “Six weeks after the lynching the superintendent and treasurer of the City Railway Company came into the office of the Free Speech and asked us to use our influence with the colored people to get them to ride on the streetcars again.” Wells, Crusade , 47. “‘You see it’s a matter of dollars and cents with us. If we don’t look after the loss and remedy the cause the company will get somebody else who will.’ ‘So your own job then depends on Negro patronage?’ I asked.” Wells, Crusade , 48.
• “Of course the Free Speech had a very caustic comment on this particular incident and that type of minister. The preachers’ alliance at its meeting the following Monday morning voted to boycott the Free Speech because of that comment and the exposure of that incident. They sent the presiding elder of the district to the office to threaten us with the loss of their patronage and the fight they were going to make against us in their congregations. We answered this threat by publishing the names of every minister who belonged to the alliance in the next issue of the Free Speech , and told the community that these men upheld the immoral conduct of one of their number and asked if they were willing to support preachers who would sneak into their homes when their backs were turned and debauch their wives. Needless to say we never heard any more about the boycott, and the Free Speech flourished like a green bay tree.” Wells, Crusade , 36–37.
• Consider a situation in which one party might be described as “threatening” to disassociate from a second unless the second agrees to his terms. If we regard this literally as a threat that would make second party’s acceptance of the terms involuntary, then, in order to avoid threatening the second party, the first would have to continue associating with the second even on terms that the first finds unacceptable, and so the relationship would not be voluntary for the first party.
• The italicized formulation is a paraphrase of Rand, “Man’s Rights,” 110. For elaboration, see Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (New York: Dutton, 1991), 351–63; DarrylWright “‘A Human Society’: Rand’s Social Philosophy” in Allan Gotthelf and Gregory Salmieri, eds., A Companion to Ayn Rand (Malden, MA: Wiley Blackwell, 2016), 172–77; Gregory Salmieri, “Selfish Regard for the Rights of Others: Continuing a Discussion with Zwolinski, Miller, and Mossoff,” in Gregory Salmieri and Robert Mayhew, eds., Foundations of a Free Society: Reflections on Ayn Rand’s Political Philosophy (Pittsburgh, PA: University of Pittsburgh Press, 2019), 184–92; and Onkar Ghate “Rand (contra Nozick) on Individual Rights and the Emergence and Justification of Government,” in Salmieri and Mayhew, Foundations ,211–19.
• Rand, “Man’s Rights.”
• I exclude here cases of defamation, on which see below, note 11.
• Wells, Crusade ,54–55. The power of disassociation is a theme in Wells’s autobiography, which begins with the story of her father leaving the man who was his employer, landlord, and former owner, over the latter’s attempt to pressure him into voting Democratic.
• A notable case of this sort of disassociation over ideology in American history is the boycotting by some Hollywood studios of Communist writers (and the much less remarked-on boycotting by many sympathetic to these Communists of those who had testified about Communist activity in Hollywood before the House Un-American Activities Committee). This episode is often represented as a violation of the Communists’ freedom of speech. Rand argued compellingly it was not. See Michael S. Berliner, ed., Letters of Ayn Rand (New York: Dutton, 1995),433–34, 435–36; Robert Mayhew, ed., Ayn Rand Answers: The Best of Her Q&A (New York: New American Library, 2005 Centennial edition), 80–85; David Harriman, ed., Journals of Ayn Rand (New York: Plume, 1999),366; Robert Mayhew, Ayn Rand and Song of Russia: Communism and Anti-Communism in 1940s Hollywood (Lanham, MD: Scarecrow Press, 2005), 84–93; John David Lewis and Gregory Salmieri, “A Philosopher on Her Times: Ayn Rand’s Political and Cultural Commentary,” in Gotthelf and Salmieri, Companion , 354–55.
• See Robert Garmong’s “The Arc of Liberalism” in Salmieri and Mayhew (eds.), Foundations of a Free Society .
• John Stuart Mill, On Liberty, in Mary Warnock, ed., Utilitarianism, On Liberty, Essay on Bentham (New York: Meridian, 1974), 130, 159.
• For example, Mill speaks of the nascent labor movement’s employing “a moral police, which occasionally becomes a physical one” to impose its opinions on employers and workers (Mill, On Liberty , 219). The moral police is presumably the body of union members voicing their disapproval of or disassociating from those who voice (or act on) opinions contrary to their own; it becomes a physical police (I presume) when it resorts to violence. In fact, many of the tactics of the nineteenth- and twentieth-century labor movement violated rights. As Rand puts the point: “An individual has no right to do a ‘sit‐in’ in the home or office of a person he disagrees with – and he does not acquire such a right by joining a gang. Rights are not a matter of numbers – and there can be no such thing, in law or in morality, as actions forbidden to an individual, but permitted to a mob” (Ayn Rand, “The Cashing-In: The Student ‘Rebellion,’” in Capitalism: The Unknown Ideal (New York: Signet, 1967 Centennial edition), 291).
• On the fallacy of “package-dealing,” see Gregory Salmieri, “The Objectivist Epistemology,” in Gotthelf and Salmieri, Companion , 297–98, and the sources cited therein.
• Rand, “Man’s Rights,” 110.
• My point here is not about the specific charges (“conspiracy,” “murder,” “mayhem”) under which these actions are or ought to be prosecutable, as these may differ from one jurisdiction to the next. The point is that these actions are akin to the rights-violations cognized under such laws, and ought to be prosecutable for the same underlying reasons, whether under these laws or under separate laws prohibiting threats or incitement.
• Some of those behind the social media campaign that led to Paty’s death were (properly) prosecuted by the French authorities. Juliette Jabkhiro and Clotaire Achi, “Six French Teenagers Convicted in Connection with 2020 Beheading of Teacher Paty,” Reuters (website), December 28, 2023, https://www.reuters.com/world/europe/six-teenagers-convicted-connection-with-2020-beheading-teacher-paty-2023-12-08/.
• Elan Journo, ed., Winning the Unwinnable War (Lanham, MD: Lexington Books: 2009); Leonard Peikoff, “Religious Terrorism vs. Free Speech,” Ayn Rand Institute (website), 1989, https://ari.aynrand.org/issues/foreign-policy/foreign-policy-more/religious-terrorism-vs-free-speech/.
• Fraud is not free speech, because a fraudster’s lies are a means of forcing himself on his victim, so that the transaction that takes place is not the one the victim consented to. Defamation (as distinct from mere criticizing or badmouthing) is a violation of a sort of property a person (or institution) has in his reputation – the same (broad) sort of property that is secured by trademark. Harry Binswanger explains: “Someone who impersonates me in order to sell to customers impressed by my reputation is, in effect, stealing this property from me (as well as defrauding the customers). And someone who defames me is damaging this property. The idea that a person can have property in his reputation follows from Rand’s view that the basis for a property right is an individual’s creation of something that is of material value.” (Harry Binswanger, “Egoism, Force, and the Need for Government,” in Salmieri and Mayhew, Foundations , 274).
• It is worth mentioning in this connection the American Civil Liberties Union’s 1977 defense of the National Socialists’ right to stage a march in Skokie, Illinois, which is much celebrated by those who think of themselves as free-speech absolutists. The Nazis had no right to hold such an event, because no one has the right to stage events of this kind. However, in a context where other ideological groups were permitted to hold such events on public property, it was violation of free speech for the Nazis to be excluded on ideological grounds. Rand explains: “You do not have the right to parade through the public streets or to obstruct public thoroughfares. You have the right of assembly, yes, on your own property, and on the property of your adherents or your friends. But nobody has the ‘right’ to clog the streets. The streets are only for passage. The hippies, in the ’60s, should have been forbidden to lie down on city pavements. (They used to lie down across a street and cause dreadful traffic snarls, in order to display their views, to attract attention, to register a protest.) If they were permitted to do it, the Nazis should be permitted as well. Properly, both should have been forbidden. They may speak, yes. They may not take action at whim on public property” (Ayn Rand, “The First Amendment and ‘Symbolic Speech,’” in Peter Schwartz, ed., Ayn Rand Column , rev. ed. (Irvine, CA: Ayn Rand Institute, 2015),117).
• On the issue of rights-violating protests generally, see Onkar Ghate’s talk “Questioning the Sacrosanct: Is There a Right to Protest?,” Salem Center for Policy (YouTube channel), November 2, 2021, https://www.youtube.com/watch?v=cdpu2JzzhFs. On Occupy Wall Street, see James A. Anderson, “Some Say Occupy Wall Street Did Nothing. It Changed Us More than We Think,” Time ,November 15, 2021, https://time.com/6117696/occupy-wall-street-10-years-later/ . On pro-Palestinian protesters occupying thoroughfares, see “Pro-Palestinian Demonstrators Shut Down Airport Highways and Bridges in Major Cities,” NPR (website), April 16, 2024, https://www.npr.org/2024/04/16/1244990246/pro-palestinian-demonstrators-shut-down-airport-highways-and-bridges . On their occupying campuses, see John McWhorter, “I’m a Columbia Professor. The Protests on My Campus Are Not Justice,” New York Times , John McWhorter newsletter, April 23, 2024, https://www.nytimes.com/2024/04/23/opinion/columbia-protests-israel.html and Lily Kepner, Skye Seipp, Ella McCarthy and Serena Lin, “UT-Austin Students Hold Pro-Palestinian Protest; at least 50 arrested,” Austin American-Statesman , April 25, 2024, https://www.statesman.com/story/news/local/2024/04/24/ut-austin-campus-student-protest-arrest-pro-palestine-protests-walk-out/73425149007 . On their occupying someone’s home, see Vimal Patel, “At Berkeley, a Protest at a Dean’s Home Tests the Limits of Free Speech,” New York Times ,April 12, 2024, https://www.nytimes.com/2024/04/12/us/uc-berkeley-palestinian-protest-free-speech.html .
• For information on the events at Berkeley from authors largely sympathetic to the protesting students, see Robert Cohen and Reginald E. Zelnik, eds., The Free Speech Movement: Reflections on Berkeley in the 1960s (Berkeley, CA: University of California Press: 2002).
• Rand, “The Cashing-In,” 291.
• See Simpson, Defending Free Speech ,87–89.

For years, the collectivists have been propagating the notion that a private individual’s refusal to finance an opponent is a violation of the opponent’s right of free speech and an act of “censorship.”

• On restrictions of commercial speech, see: https://ij.org/issues/first-amendment/commercial-speech/ . On campaign finance laws as violations of free speech, see Simpson, Defending Free Speech , 93–108.
• On why the “separation of church and state” demanded by the First Amendment should be applied to ideas more generally, see Onkar Ghate, “A Wall of Separation between Church and State: Understanding This Principle’s Supporting Arguments and Far-Reaching Implications,” in Salmieri and Mayhew, Foundations , 283–303, reprinted as chapter 2 of this volume.
• On the evil of public education, see Nathaniel Branden, “Common Fallacies about Capitalism,” in Rand, Capitalism ,92–96. See also “Is Public Education Compatible with Free Speech?,” Salem Center for Policy (YouTube channel), November 2, 2021, https://www.youtube.com/watch?v=_7zMtX0W82s , and Matt Bateman, “Public Schools Exacerbate the Culture Wars,” Montessorium (blog), November 17, 2021, https://montessorium.com/blog/public-schools-exacerbate-the-culture-wars .
• For example, Jordan Peterson’s free speech was violated by the College of Psychologists of Ontario when it disciplined him (threatening to revoke his license to practice psychology) because of his controversial statements on a number of subjects. (Tyler Dawson, “Read Jordan Peterson’s Tweets That Prompted Complaints to Psychologists’ College,” National Post , January 6, 2023, https://nationalpost.com/news/canada/read-jordan-petersons-tweets-that-prompted-complaints-to-psychologists-college ). But the underlying violation of free speech is the existence of the College itself as a regulatory body . An organization of psychologists making joint determinations about who is a qualified practitioner in their field may need to take cognizance of the practitioners’ opinions on a range of subjects (and of how they chose to express these opinions). And their doing so would be no violation of the freedom of speech if the organization were voluntary. However, when the decisions of the organization determine whether someone is to be legally allowed to practice, any consideration of such opinions becomes fraught. To minimize the evil inherent in the existence of such an organization, it is obligated to adopt the most neutral stance possible toward practitioners’ opinions, even if that reduces its work to a sort of box-checking exercise that is insufficient to make meaningful determinations about who is and is not fit to practice.
• Florida’s statute 501.2041(2)(b) demands a consistent standard for shadow-banning and deplatforming users on social media platforms ( http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0501/Sections/0501.2041.html ). Texas’s H.B. 20 bars social media platforms with more than fifty million active users from blocking, removing, or demonetizing content of users based on their views ( https://capitol.texas.gov/tlodocs/872/billtext/html/HB00020F.HTM ). Both laws were enjoined by district courts as a result of facial First Amendment challenges. The Eleventh Circuit upheld the injunction against the Florida law, but the Fifth Circuit reversed the injunction of the Texas law, creating a circuit split. The Supreme Court vacated both circuit court holdings and remanded the cases “because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms” ( Moody v. NetChoice , https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf ). At present the district courts’ injunctions are in effect. The Supreme Court’s ruling makes clear that the specific provisions of the laws that were focused on by the circuit courts are unconstitutional and that the Fifth Circuit’s “decision rested on a serious misunderstanding of First Amendment precedent and principle,” so there is little doubt that the relevant previsions of the laws will ultimately be struck down (whether or not this facial challenge against the laws as wholes ultimately succeeds).
• For example, there are contexts in which burning a cross, drawing a swastika, or invoking the mottos or symbols of a violent group (such as ISIS, the Ku Klux Klan, or a street gang) could be reasonably understood as putting people on notice that they are subject to violence from these groups or as calling potential victims to the group’s attention. In such cases, the invocations could be tantamount to intimidation or coordination of criminal activity.
• Thus Wells’s right of free speech was violated when her contract as a public school teacher was not renewed because she had protested “conditions in the colored schools.” As she recounts the event: “No fault was found with my ability as a teacher or with my character, but the board had a copy of the Free Speech on file in the office showing criticism of them. They didn’t care to employ a teacher who had done this, and for that reason I had been left out.” (Wells, Crusade ,32–34) However, it would not have been a violation of Wells’s free speech rights if she had been fired by a private school for having published a similar criticism of it.
• Wells, Crusade , 48–49. For additional background on these events, see Damon Mitchell, “The People’s Grocery Lynching, Memphis, Tennessee,” JSTOR Daily (blog), January 24, 2018, https://daily.jstor.org/peoples-grocery-lynching/ .

Katie Shepherd and Mark Guarino, “Liberal Prosecutors Face Backlash over Lenient Charges Following Civil Unrest and Looting,” Washington Post , August 12, 2020, https://www.washingtonpost.com/nation/2020/08/12/chicago-portland-protester-charges/ . Mariana Alfaro, “Trump Vows Pardons, Government Apology to Capitol Rioters if Elected,” Washington Post , September 1, 2022, https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/ .

• Surely racism (and cowardice concerning it) does not exist in America today at the scale and in the form that it did in Wells’s time, but it persists in various forms, and questions about the extent, nature, causes, and effects of racism in present-day America continue to be controversial. I will not go further into this question here, except to say that whatever is the case with racism in particular, we must be ever vigilant about the possibility of widespread cultural prejudices within our society (and in ourselves) that can pervert the course of justice in some of the ways described.
• See George H.W. Bush’s remarks in the wake of the Ayatollah’s call for Salman Rushdie’s murder, remarks which the New York Times characterized as “intended to express condemnation in a low-key manner” (Thomas L. Friedman, “Bush Finds Threat to Murder Author ‘Deeply Offensive,’” New York Times , February 22, 1989, https://archive.nytimes.com/www.nytimes.com/books/99/04/18/specials/rushdie-bush.html ); George W. Bush’s official statement that “Islam Is Peace” in the wake of the September 11, 2001, attacks (“‘Islam Is Peace,’ Says President,” White House press release, September 17, 2001, https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010917-11.html ); Barack Obama, “Remarks by the President to the UN General Assembly,” White House press release, September 25, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/09/25/remarks-president-un-general-assembly (“The future must not belong to those who slander the prophet of Islam”); Donald Trump’s tweet that it was “dumb” for the Charlie Hebdo magazine to criticize Mohammed in a cartoon that thereby “provoked” a violent response by terrorists ( https://tinyurl.com/m8pr8yr2 ); David Frum, “Why Obama Won’t Talk about Islamic Terrorism,” Atlantic , February 16, 2015, https://www.theatlantic.com/politics/archive/2015/02/why-obama-wont-talk-about-islamic-terrorism/385539/ (Obama describing terrorist attacks as “random” in order to avoid describing the perpetrators’ religious motives); Elan Journo, “After Orlando: Why Trump and Clinton Both Get the Jihadists Wrong,” in Onkar Ghate and Elan Journo, eds., Failing to Confront Islamic Totalitarianism: What Went Wrong After 9/11 , 2d expanded ed. (Santa Ana, CA: Ayn Rand Institute Press, 2021), 166–68 (leading presidential candidates, Hillary Clinton and Donald Trump, “have put forward views that negate the ideological character of the enemy”).
• See Journo, Winning the Unwinnable War ; Ghate and Journo, Failing to Confront ; and Leonard Peikoff’s article following the 9/11 attacks, “End States Who Sponsor Terrorism,” in Ghate and Journo, Failing to Confront , xvii–xxii, https://ari.aynrand.org/issues/foreign-policy/foreign-policy-more/end-states-who-sponsor-terrorism/ .
• For example, many of the organizations mentioned were subjects of the COINTELPRO, a counterintelligence program run by the FBI between 1956 and 1971. On this program, see the Church Committee’s report, https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm NS, and David Cunningham, There’s Something Happening Here: The New Left, the Klan, and FBI Counterintelligence (Berkeley, CA: University of California Press, 2004).
• On the problems created by misconceptualizing in this field, see Tara Smith, “The Free Speech Vernacular: Conceptual Confusions in the Way We Speak about Speech,” chapter 4 in her The First Amendment: Essays on the Imperative of Intellectual Freedom (Santa Ana, CA: Ayn Rand Institute Press: 2024).
• See Ghate, “A Wall of Separation,” and Onkar Ghate, “Church-State Separation: A Principle, Not a ‘Wall,’” New Ideal , March 27, 2019,https://newideal.aynrand.org/church-state-separation-a-principle-not-a-wall-part-1/.
• In situations where there is no government (or the government is irredeemably unjust), the principle of rights demands that a just government be formed, and it obligates those living in the society either to work toward forming one (where there is any possibility of doing so) or else attempt to escape to a more moral society.
• Mill, On Liberty , 163–64.
• Mill, On Liberty , 164.
• The law firm Davis Polk has rescinded offers to law students from Columbia and Harvard on these grounds: Adam Gabbatt, “Leading US Law Firm Says It Rescinded Job Offers to Students Who Backed Israel-Hamas Letters,” The Guardian , October 18, 2023, https://www.theguardian.com/us-news/2023/oct/18/student-palestine-letter-harvard-columbia-us-law-firm-jobs-revoked.
• https://journalofcontroversialideas.org/ .
• Elon Musk (@elonmusk), “Given that Twitter serves as the de facto town square,” Twitter, March 26, 2022, 1:51 p.m., https://twitter.com/elonmusk/status/1507777261654605828 .
• Elon Musk (@elonmusk), “Dear Twitter Advertisers,” Twitter, October 27, 2022, 9:08 a.m., https://twitter.com/elonmusk/status/1585619322239561728/photo/2 .
• Elon Musk (@elonmusk), “By ‘free speech,’ I simply mean that which matches the law,” Twitter, April 26, 2022, 3:33 p.m., https://twitter.com/elonmusk/status/1519036983137509376 .
• “Censorship” as used to include refusals-to-platform is an “anti-concept” – “an unnecessary and rationally unusable term designed to replace and obliterate some legitimate concept” (Ayn Rand, “Credibility and Polarization,” Ayn Rand Letter 1, no. 1 (October 11, 1971), 1. In particular, the term “censorship” was used by socialists in the mid-twentieth century to obliterate the legitimate concepts of “censorship” and “free speech.” Rand forcefully differentiates such refusals-to-platform from censorship: “‘Censorship’ is a term pertaining only to governmental action. No private action is censorship. No private individual or agency can silence a man or suppress a publication; only the government can do so. The freedom of speech of private individuals includes the right not to agree, not to listen and not to finance one’s own antagonists” (Rand, “Man’s Rights,” 116). The point is not merely semantic. If one accepts that there is a right to freedom of speech (as elaborated in the first section of this paper), then there can be no grounds for any concept that includes only some acts of content moderation (which are exercises of this right) and all acts of genuine censorship (which are violations of this same right).
• Of course the First Amendment, like all law (even fundamental law), is ultimately passed by the people’s representatives and can be changed by them in the future. Its status as a law reflects the will of the people whose duly elected representatives ratified it. But, what they were doing in ratifying it was recognizing and protecting a right that is inherent in human nature, and this is what makes it a just law. This relation between laws and rights is well reflected in the concluding text of the Virginia Statute for Religious Liberty (which was drafted by Thomas Jefferson, shepherded through the Virginia legislature by James Madison, and then served as a model for the First Amendment): “And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies constituted with powers equal to our own, and that, therefore, to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind; and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right” (Va. Code Ann. § 57-1, https://law.lis.virginia.gov/vacodefull/title57/chapter1/).
• American Association of University Professors, “1940 Statement of Principles on Academic Freedom and Tenure,” 14, https://www.aaup.org/file/1940%20Statement.pdf .
• American Association of University Professors, “1915 Declaration of Principles on Academic Freedom and Academic Tenure,” 293, 296–97, https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B550-C006B5B224E7/0/1915Declaration.pdf.
• AAUP, “1915 Declaration,” 297.
• AAUP, “1915 Declaration,” 300.
• Tiffany Hsu, “Twitter’s Advertisers Pull Back as Layoffs Sweep Through Company,” New York Times , November 4, 2022, https://www.nytimes.com/2022/11/04/technology/twitter-advertisers.html ; Nicholas Reimann, “Musk Says Apple Cutting Twitter Ads – Here Are Other Companies Rethinking Their Ties,” Forbes.com (website), November 28, 022, https://www.forbes.com/sites/nicholasreimann/2022/11/28/musk-says-apple-cutting-twitter-ads-here-are-the-other-companies-rethinking-their-ties/ ; Kari Paul, “General Mills Latest to Halt Twitter Ads as Musk Takeover Sparks Brand Exodus,” The Guardian , November 3, 2022,  https://www.theguardian.com/technology/2022/nov/03/general-mills-twitter-ads-halt-musk-takeover ; Kate Congers and Tiffany Hsu, “More Advertisers Halt Spending on X in Growing Backlash Against Musk,” New York Times ,November 18, 2023, https://www.nytimes.com/2023/11/18/technology/elon-musk-twitter-x-advertisers.html .
• Elon Musk, “Dear Twitter Advertisers.”
• Elon Musk (@elonmusk), “Premium+ also has no ads on your timeline,” X, November 17, 2023, 9:48 p.m., https://twitter.com/elonmusk/status/1725707584555143602 .
• “Elon Musk’s X sues advertisers over alleged ‘massive advertiser boycott’ after Twitter takeover,” Associated Press , August 6, 2024, https://apnews.com/article/x-sues-advertisers-unilever-cvs-mars-orsted-673d1ae88e9fb0ca5b170d238739453e . Relevant Tweets: https://x.com/lindayaX/status/1820838134470328676 , https://x.com/elonmusk/status/1820849880283107725?lang=en , https://x.com/elonmusk/status/1820849358402670800?lang=en , https://x.com/elonmusk/status/1820852107932545242 , https://x.com/elonmusk/status/1820851090138505570.
• Josh Halliday, “Twitter’s Tony Wang: ‘We Are the Free Speech Wing of the Free Speech Party,’” The Guardian ,March 22, 2012, https://www.theguardian.com/media/2012/mar/22/twitter-tony-wang-free-speech.
• Sinead McSweeney (Twitter’s vice president for public policy and communications in Europe, the Middle East, and Africa) in 2017 testimony before British parliament (Shona Ghosh, “Twitter Was Once a Bastion of Free Speech but Now Says It’s ‘No Longer Possible to Stand Up for All Speech,’” Business Insider , December 19, 2017,  https://www.businessinsider.com/twitter-no-longer-possible-to-stand-up-for-all-speech-2017-12?r=nordic).
• Ashe Schow, “Twitter CEO: ‘I Don’t Believe That We Can Afford to Take a Neutral Stance Anymore,’” Daily Wire , February 11, 2019, https://www.dailywire.com/news/twitter-ceo-i-dont-believe-we-can-afford-take-ashe-schow ; “Jack Dorsey,” SamHarris.org (website), interview, February 5, 2019, https://samharris.org/podcasts/148-jack-dorsey/.
• The terms “left” and “right” as they are used in contemporary political discourse name rival tribes, each of which is united by its fear and hatred of the other, rather than by a shared ideology. On the constitution and history of these tribes (and the various ideas current in each of them), see Nikos Sotirakopoulos, Identity Politics and Tribalism: The New Culture Wars (Exeter, UK: Imprint Academic, 2021).
• Elizabeth Dwoskin and Tony Romm, “Facebook Purged over 800 U.S. Accounts and Pages for Pushing Political Spam,” Washington Post ,October 11, 2018, https://www.washingtonpost.com/technology/2018/10/11/facebook-purged-over-accounts-pages-pushing-political-messages-profit/ ; “Removing Additional Inauthentic Activity from Facebook,” Meta (website), October 11, 2018, https://about.fb.com/news/2018/10/removing-inauthentic-activity/ ; Helen Lewis, “What You Can’t Say on YouTube,” The Atlantic , March 10, 2023, https://www.theatlantic.com/ideas/archive/2023/03/youtube-content-moderation-rules/673322/ ; Sam Levin, “YouTube’s Small Creators Pay Price of Policy Changes after Logan Paul Scandal,” The Guardian ,January 18, 2018, https://www.theguardian.com/technology/2018/jan/18/youtube-creators-vloggers-ads-logan-paul ; Jack Nicas, “Google’s YouTube Has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos,” Wall Street Journal ,March 24, 2017, https://www.wsj.com/articles/googles-youtube-has-continued-showing-brands-ads-with-racist-and-other-objectionable-videos-1490380551 ; Alexi Mostrous, “Big Brands Fund Terror Through Online Adverts,” Sunday Times , February 9, 2017, https://www.thetimes.co.uk/article/big-brands-fund-terror-knnxfgb98 ;  Avi Selk, “Facebook Told Two Women Their Pro-Trump Videos Were ‘Unsafe,’” Washington Post , April 10, 2018,  https://www.washingtonpost.com/news/the-intersect/wp/2018/04/10/facebook-accused-of-deeming-black-pro-trump-sisters-unsafe/ ; Ashley Gold, “‘We’ve Been Censored,’ Diamond and Silk Tell Congress,” Politico , April 26, 2018, https://www.politico.com/story/2018/04/26/diamond-and-silk-congress-hearing-1116887 .
• On the lawsuit, see Prager University v. Google LLC, No. 18-15712, slip op. (9th Cir. Feb. 26, 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/26/18-15712.pdf ; Nancy Scola, “Federal Court Tosses Conservatives’ First Amendment Suit against YouTube,” Politico ,February 26, 2020, https://www.politico.com/news/2020/02/26/youtube-court-first-amendment-117769 ; NetChoice, Letter to Sen. Ted Cruz, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, re: Hearing to Examine Google on Censorship Through Search Engines, July 15, 2019, https://netchoice.org/wp-content/uploads/2020/04/NetChoice-comment-for-Sen-Judiciary-hearing-16-Jul-2019-1.pdf .
• On the shooting, see Nellie Bowles and Jack Nicas, “YouTube Attacker’s Complaints Echoed Fight over Ad Dollars,” New York Times ,April 4, 2018, https://www.nytimes.com/2018/04/04/technology/youtube-attacker-demonetization.html .
• Kate Conger and Mike Isaac, “In Reversal, Twitter Is No Longer Blocking New York Post Article,” New York Times ,October 16, 2020, https://www.nytimes.com/2020/10/16/technology/twitter-new-york-post.html ; Noah Manskar, “Jack Dorsey Says Blocking Post ’s Hunter Biden Story Was ‘Total Mistake’ – But Won’t Say Who Made It,” New York Post ,March 25, 2021, https://nypost.com/2021/03/25/dorsey-says-blocking-posts-hunter-biden-story-was-total-mistake/ .
• Kate Conger, Mike Isaac and Sheera Frenkel, “Twitter and Facebook Lock Trump’s Accounts after Violence on Capitol Hill,” New York Times , January 6, 2021, https://www.nytimes.com/2021/01/06/technology/capitol-twitter-facebook-trump.html ; Will Oremus, “Tech Giants Banned Trump. But Did They Censor Him?,” Washington Post , January 7, 2022, https://www.washingtonpost.com/technology/2022/01/07/trump-facebook-ban-censorship/ .
• Harris is especially good in his opening remarks on free speech in episode 344 of his podcast, https://www.samharris.org/podcasts/making-sense-episodes/344-the-war-in-gaza , and the two discuss their approaches to being a public intellectual (and engaging with social media) in the first thirty-three minutes of Harris’s appearance on Peterson’s podcast, https://www.youtube.com/watch?v=2d3sk9gPfOA&t=207s .
• Sam Harris, “Closing My Patreon Account,” Patreon email, https://mailchi.mp/samharris/closing-my-patreon-account .
• Jordan Peterson, “Patreon Account Deletion,” video, Jordan B. Peterson (YouTube channel), posted January 15, 2019, https://www.youtube.com/watch?v=WrZDcEix7uk .
• CEO’s position statement, December 21, 2023, https://substack.com/@hamish/note/c-45811343 .
• Jonathan M. Katz, “Substack Has a Nazi Problem,” The Atlantic , November 28, 2023, https://www.theatlantic.com/ideas/archive/2023/11/substack-extremism-nazi-white-supremacy-newsletters/676156/ .
• CEO’s position statement, https://substack.com/@hamish/note/c-45811343 . Bryan Caplan, “Substack versus the Slippery Slope,” January 28, 2024, https://betonit.substack.com/p/substack-versus-the-slippery-slope .
• https://web.archive.org/web/20220501001906/https://parler.com/ .
• Jack Nicas and Davey Alba, “Amazon, Apple and Google Cut Off Parler, an App That Drew Trump Supporters,” New York Times , Jan. 9, 2021, https://www.nytimes.com/2021/01/09/technology/apple-google-parler.html ; Karen Weise and Nicole Perlroth, “Parler Accuses Amazon of Breaking Antitrust Law in Suspending Hosting Services,” New York Times, Jan. 11, 2021, https://www.nytimes.com/2021/01/11/business/parler-amazon.html .
• Aatif Sulleyman, “Parler’s Amy Peikoff Says Tech Giants Use ‘1984’ Like ‘An Instruction Manual,’” Newsweek , Jan 12, 2021, https://www.newsweek.com/parler-amy-peikoff-says-tech-giants-use-1984-like-instruction-manual-1560730 .
• Vimal Patel, “UPenn Accuses a Law Professor of Racist Statements. Should She Be Fired?,” New York Times ,March 13, 2023, https://www.nytimes.com/2023/03/13/us/upenn-law-professor-racism-freedom-speech.html . Ethan Young, “Leaked documents shed new light on recommended Amy Wax sanctions, her appeal to Penn,” Daily Pennsylvanian ,2/09/2024, https://www.thedp.com/article/2024/02/amy-wax-hearing-leaked-documents-penn .
• Jodi Dean, “Palestine Speaks for Everyone,” Verso (blog), April 9, 2024, https://www.versobooks.com/blogs/news/palestine-speaks-for-everyone .
• Mark D. Gearan, “A Message from President Mark D. Gearan,” Hobart and William Smith Colleges (website), April 13, 2024, https://www.hws.edu/offices/president/statements/a-message-from-president-mark-d-gearan.aspx.
• W.E.B. du Bois Movement School (@AbolitionSchool), “Jodi Dean has been banned from the classroom for speaking the truth,” X, April 14, 2024, 7:58 p.m., https://twitter.com/AbolitionSchool/status/1779660609367281920; Brian Leiter, “Brazen Violation of Contractual Rights of a Faculty Member at Hobart & William Smith Colleges,” Leiter Reports: A Philosophy Blog ,April 14, 2024, https://leiterreports.typepad.com/blog/2024/04/brazen-violation-of-contractual-rights-of-a-faculty-member-at-hobart-william-smith-colleges.html ; Sohrab Ahmari (@SohrabAmari), “I fiercely, thoroughly disagreed with Jodi’s piece,” X, April 13, 2024, 4:17 p.m., https://twitter.com/SohrabAhmari/status/1779242644658393340.
• Edward Alsworth Ross, Social Control: A Survey of the Foundations of Order (New Brunswick, NJ: Transaction Publishers, 2009), 52.
• “Warning Against Coolie ‘Natives’ and Japanese,” San Francisco Call and Post , May 8, 1900, 12, https://www.newspapers.com/image/78268425/?match=1&terms=%22vessel%20bringing%20Japanese%22.
• Jane Stanford, Letter of May 17, 1900, quoted in Warren J. Samuels, “The Firing of E. A. Ross from Stanford University: Injustice Compounded by Deception?,” Journal of Economic Education , Vol. 22, No. 2 (Spring, 1991), pp. 183–90 ( https://www.jstor.org/stable/1182424 ).
• On the Ross affair, see (in addition to the sources cited in the previous notes): Orrin Leslie Elliott, Stanford University: The First Twenty-Five Years (Stanford University Press, 1937), 326–78; Richard White, The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865–1896 (Oxford History of the United States) (New York: Oxford University Press, 2017), 704–706; Brian Eule, “Watch Your Words, Professor,” Stanford Magazine , January/February2015, https://stanfordmag.org/contents/watch-your-words-professor .
• “Stanford History,” Stanford University (website), https://facts.stanford.edu/about/.
• Compare their mission statements: “Mission Statement,” Princeton University (website), https://www.princeton.edu/meet-princeton/mission-statement , and “What We Value,” University of Chicago (website), https://www.uchicago.edu/who-we-are/what-we-value .
• Kalven Committee, “Report on the University’s Role in Political and Social Action,” University of Chicago (website), November 11, 1967, https://provost.uchicago.edu/sites/default/files/documents/reports/KalvenRprt_0.pdf.
• Christopher L. Eisgruber, “Princeton’s Tradition of Institutional Restraint,” Princeton Alumni Weekly , November 7, 2022, https://paw.princeton.edu/article/princeton-president-christopher-eisgruber-tradition-institutional-restraint.
• Jacob Howland, “College of the Future,” City Journal ,Winter 2023, https://www.city-journal.org/article/college-of-the-future#:~:text=We%20care%20about%20academic%20freedom,and%20has%20encouraged%20political%20conformity .
• Howland, “College of the Future.”
• Brian Armstrong, “Coinbase Is a Mission Focused Company,” Coinbase(website), September 27, 2020, https://www.coinbase.com/blog/coinbase-is-a-mission-focused-company .
• Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
• On this story, see Mateo Gutierrez, Lyla Bhalla-Ladd and Mohammed Zain Shafi Khan, “Provost Announces Valedictorian Won’t Speak at Graduation in May,” USCAnnenbergMedia.com (website), April 15, 2024, https://www.uscannenbergmedia.com/2024/04/15/provost-announces-valedictorian-wont-speak-at-graduation-in-may/ ; Stephanie Saul, “U.S.C. Cancels Valedictorian’s Speech After Pro-Israel Groups Object,” New York Times , April 16, 2024, https://www.nytimes.com/2024/04/16/us/usc-valedictorian-speech-gaza-war.html ; Jaweed Kaleem, “USC Valedictorian’s Grad Speech Is Canceled: ‘The University Has Betrayed Me,’” Los Angeles Times , April 16, 2024, https://www.latimes.com/california/story/2024-04-16/usc-valedictorian-banned-graduation-speech .
• Regarding Milo Yiannopoulos, see Susan Svrluga, “Milo Speech at U-Md. Canceled Because Security Fee Was Too High; Supporters Call It Censorship,” Washington Post , October 25, 2016, https://www.washingtonpost.com/news/grade-point/wp/2016/10/25/milo-speech-at-u-md-canceled-because-security-fee-was-too-high-supporters-call-it-censorship/ . Regarding Ben Shapiro, see Eugene Volokh, “Cal State L.A. Cancels Speech by Conservative Writer Ben Shapiro [UPDATE: Cal. State L.A. Is Allowing Shapiro to Speak After All],” Washington Post ,February 25, 2016, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/25/cal-state-l-a-cancels-speech-by-conservative-writer-ben-shapiro/ . I know about the canceled Brook events from personal communication with Brook.

Gregory Salmieri

Gregory Salmieri , PhD in philosophy, is a senior scholar of philosophy in the Salem Center for Policy at The University of Texas at Austin’s McCombs School of Business. He holds the Brigham Fellowship for the Study of Objectivism and is the director of the center’s Program for Objectivity in Thought, Action, and Enterprise. He is co-editor of A Companion to Ayn Rand and Foundations of a Free Society and has published and lectured on epistemology, ethics, political philosophy, and the philosophies of Aristotle and Ayn Rand.

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