a speech about freedom of expression

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Freedom of Speech

By: History.com Editors

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

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

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

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

First Amendment

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

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

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

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

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

Flag Burning

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

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

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

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

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

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

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

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

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

Freedom of Expression

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

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

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

Free Speech in Schools

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

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

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

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Freedom of Speech

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

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

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

1. What is Freedom of Speech?

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

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

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

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

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

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

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

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

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

2. Justifying Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Justifying Speech Restrictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Acknowledgments

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

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

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Freedom of Expression, a Fundamental Human Right

About the author, ban ki-moon.

Freedom of expression is a fundamental human right, enshrined in Article 19 of the Universal Declaration of Human Rights. But around the world, there are governments and those wielding power who find many ways to obstruct it.

They impose high taxes on newsprint, making newspapers so expensive that people can't afford to buy them. Independent radio and TV stations are forced off the air if they criticize Government policy. The censors are also active in cyberspace, restricting the use of the Internet and new media.

Some journalists risk intimidation, detention and even their lives, simply for exercising their right to seek, receive and impart information and ideas, through any media, and regardless of frontiers.

Last year, UNESCO condemned the killing of 77 journalists. These were not high-profile war correspondents, killed in the heat of battle. Most of them worked for small, local publications in peacetime. They were killed for attempting to expose wrongdoing or corruption.

I condemn these murders and insist that the perpetrators are brought to justice. All Governments have a duty to protect those who work in the media. This protection must include investigating and prosecuting those who commit crimes against journalists.

Impunity gives the green light to criminals and murderers, and empowers those who have something to hide. Over the long term, it has a corrosive and corrupting effect on society as a whole.

This year's theme is Freedom of Information: the right to know. I welcome the global trend towards new laws which recognize the universal right to publicly held information. Unfortunately, these new laws do not always translate into action. Requests for official information are often refused, or delayed, sometimes for years. At times, poor information management is to blame. But all too often, this happens because of a culture of secrecy and a lack of accountability.

We must work to change attitudes and to raise awareness. People have a right to information that affects their lives, and states have a duty to provide this information. Such transparency is essential to good government.

The UN Chronicle  is not an official record. It is privileged to host senior United Nations officials as well as distinguished contributors from outside the United Nations system whose views are not necessarily those of the United Nations. Similarly, the boundaries and names shown, and the designations used, in maps or articles do not necessarily imply endorsement or acceptance by the United Nations.

Improving Diagnosis for Patient Safety: A Global Imperative for Health Systems

States are increasingly recognizing the importance of ensuring access to safe diagnostic tools and services, towards avoiding preventable harm and achieving positive patient outcomes.

How International Cooperation in Policing Promotes Peace and Security

The role of international policing is closely aligned with the principles of justice, peace, democracy and human rights, and is integral to the 2030 Agenda for Sustainable Development.

Voices for Peace: The Crucial Role of Victims of Terrorism as Peace Advocates and Educators

In the face of unimaginable pain and trauma, victims and survivors of terrorism emerge as strong advocates for community resilience, solidarity and peaceful coexistence.

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Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its "preferred position" in our constitutional hierarchy, the nation's commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government's power to punish "seditious" and "subversive" speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were "fit for something better than slavery and cannon fodder." Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution's framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish "any false, scandalous and malicious writing" against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as "radical" by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation's early era, the courts were almost universally hostile to political minorities' First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant's conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test."

From then on, the right to freedom of expression grew more secure -- until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government -- even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, "imminent lawless action." Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES "PROTECTED SPEECH" INCLUDE?

First Amendment protection is not limited to "pure speech" -- books, newspapers, leaflets, and rallies. It also protects "symbolic speech" -- nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on "flag desecration." Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing "time, place and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination -- and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn't need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible."

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government's interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of "national security" to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the "Pentagon Papers" by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country's involvement in Vietnam, was leaked to the press. When the Times ignored the government's demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through "prior restraint," block publication of any material unless it could prove that it would "surely" result in "direct, immediate, and irreparable" harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public's First Amendment "right to know" is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government's claims of "national security" must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called "fighting words ... which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected. This decision was based on the fact that fighting words are of "slight social value as a step to truth."
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished -- only if the offended official can prove the falsehoods were published with "actual malice," i.e.: "knowledge that the statement was false or with reckless disregard of whether it was false or not." Other kinds of "libelous statements" are also punishable.
• Legally "obscene" material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce's classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed "legally obscene." It must 1) appeal to the average person's prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a "patently offensive way" as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the "Miller test" have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: "I know it when I see it." But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It's the foundation of self-fulfillment. The right to express one's thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself -- and as such, deserves society's greatest protection.

It's vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. Therefore, all points of view -- even those that are "bad" or socially harmful -- should be represented in society's "marketplace of ideas."

It's necessary to our system of self-government and gives the American people a "checking function" against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual's freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, "Speech Acts" and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women's Rights, Anchor Press, 1995.

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• Amnesty International UK / Issues

What is freedom of speech?

'Freedom of speech is the right to seek, receive and impart information and ideas of all kinds, by any means.'

Is freedom of speech a human right?

In the UK, Article 10 of the 1998 Human Rights Act protects our right to freedom of expression:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Are freedom of speech and freedom of expression the same thing? In the UK, freedom of speech is legally one part of the wider concept of freedom of expression.

Does freedom of speech have limits?

...and when it can't.

ANTI-PROTEST LAWS IN THE UK

Protest is not only a human right. It is a powerful way to change the world ✊🏽 People in power, afraid of change & afraid to be held accountable, want us to think that coming together to protect our rights doesn’t work. 🧵 5 protests that show #PeoplePower can win human rights — Amnesty UK (@AmnestyUK) August 23, 2023

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While you’re here…

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As ever, our mission to protect human rights remains. Please donate today to help expose war crimes and protect human rights. Thank you.

• First Amendment

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The First Amendment  of the  United States Constitution  protects the right to freedom of religion and freedom of expression from government  interference. It prohibits any laws that establish a national religion, impede the free exercise of religion , abridge the freedom of speech , infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit  citizens from petitioning for a governmental redress of grievances. It was adopted into the  Bill of Rights  in 1791. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress . Furthermore, the Court has interpreted the  Due Process Clause  of the  Fourteenth Amendment  as protecting the rights in the  First Amendment  from interference by state governments. 

Freedom of Religion

Two clauses in the First Amendment guarantee freedom of religion . The  Establishment Clause  prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state." However, some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of " blue laws " is not prohibited. The  Free Exercise Clause  prohibits the government, in most instances, from interfering with a person's practice of their religion.

Freedom of Speech / Freedom of the Press

The most basic component of freedom of expression is the right to freedom of speech. Freedom of speech may be exercised in a direct (words) or a symbolic (actions) way. Freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights . The right to freedom of speech allows individuals to express themselves without government interference or regulation . The Supreme Court requires the government to provide substantial justification for interference with the right of free speech when it attempts to regulate the content of the speech. Generally, a person cannot be held liable , either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements.

A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more unprotected and less protected categories of speech see  advocacy of illegal action ,  fighting words ,  commercial speech , and  obscenity . The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the  forum  in which it takes place.   

Despite the popular misunderstanding, the right to freedom of the press guaranteed by the First Amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.

Right to Assemble / Right to Petition

The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the  First , Fifth , and Fourteenth Amendments. Freedom of assembly is recognized as a human right under article 20 of the Universal Declaration of Human Rights . This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating with groups that engage in and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with First Amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.

The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through litigation  or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.

Federal Material

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• Fifth Amendment
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• Religion and Expression
• Right of Association

Federal Judicial Decisions

• Historic Constitutional Law Decisions
• Recent First Amendment Decisions -  Religion ,  Press ,  Speech
• Mahanoy Area School District v. B.L.
• LII Supreme Court Bulletin

State Material

State judicial decisions.

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• Appellate Decisions from Other States

International Material

Conventions and treaties.

Human Rights Treaties

Key Internet Sources

• The First Amendment Encyclopedia (Middle Tennessee State University)
• Freedom of Expression (National Endowment for the Arts)
• Freedom Forum First Amendment Center
• EFF Legal Guide for Bloggers
• LII Sitewide: First Amendment
• Supreme Court Cases Overview 2000 – 2019

Additional Topics

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• Category: Constitutional Law

[Last updated in December of 2022 by the Wex Definitions Team ] 

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Overview of Freedom of Expression at Stanford

Stanford is committed to freedom of expression, free inquiry, and the open exchange of ideas as fundamental values for the university’s academic mission. This website furnishes interim guidance on the application of freedom of expression principles in different contexts around campus. While the guidance is intended to provide greater clarity about current policies and procedures, some of these policies will continue to be evaluated by university administration as well as the Faculty Senate’s Ad Hoc Committee on University Speech, with input and consultation across our community.

Stanford has long supported academic freedom and freedom of expression, from the 1974 Statement on Academic Freedom through more recent reaffirmations by university leaders of far-reaching support for speech (for example, the President and Provost’s letter to admitted undergraduates and Jenny Martinez’s memo to the Stanford Law School of March 2023). In May of 2024, the Faculty Senate unanimously approved a new Statement on Freedom of Expression drawing on this tradition. 

Statement on Freedom of Expression at Stanford Stanford is profoundly committed to freedom of expression, free inquiry, and the open exchange of ideas. Freedom of expression is a fundamental value for the university’s knowledge-bearing mission, alongside the inclusion of all viewpoints and the promotion of rigorous and reasoned academic debates. The freedom to explore and present new, unconventional, and even unpopular ideas is essential to the academic mission of the university; therefore, Stanford shall promote the widest possible freedom of expression, consistent with the university’s legal and moral obligations to prevent harassment and discrimination. Accordingly, university policies must not censor individuals’ speech based on the content of what is expressed, except in narrow circumstances. At the same time, Stanford’s educational role as well as its academic and legal obligations differ across locations and contexts on campus, such as spaces open to all community members, classrooms, and dormitories. Community members also have varying privileges and responsibilities in different contexts. Likewise, legal rights and obligations pertain in different ways to community members depending on whether they are acting as students, teachers, staff, or faculty members. The principles of freedom of speech and expression will be understood in light of these variations across contexts and roles. The campus disruption policy furnishes an example of how some of these distinctions may be drawn.

The interpretations of the policies and procedures collected on this website are meant to maximally protect community members’ rights to free expression, with limits imposed only when allowing such expression would infringe on the rights of others or impede the university’s core academic operations. In particular, they provide that the university generally should not make distinctions about what is allowed based on the viewpoint of speech. The university’s time, place, and manner rules are meant to provide ample outlets for expression of the widest range of views on campus, and also to protect the rights of other students (as well as faculty and staff) to attend classes, study in libraries, work in labs and offices, hear speakers, have spaces to express their own viewpoints, and have places for rest and respite in dormitories and residences. At the same time, prohibitions on harassment protect the equal rights of others to access education consistent with federal civil rights laws such as Title VI and Title IX. In addition, the university prohibits legally unprotected speech such as true threats and incitement to imminent violence.

Speech that is controversial and even deeply offensive to some must be protected as part of our commitment to the open exchange of ideas and avoidance of institutional orthodoxy. As the Faculty Senate resolution recognized, however, not all speech is appropriate at all times and places on campus. Protests are an important part of political speech in a democracy, and multiple spaces on campus are available for protests. However, protest activity should not disrupt the university’s ability to carry out its core educational functions, such as through a disruption to a class, event, or lab work that impedes the rights of students attending the class or event or working in the lab to pursue their goals, or the ability of faculty and staff to complete their work. Likewise, a poster that might offend some members of the community may be placed in various locations around campus but not on the dormitory door of a person being targeted by the speech. Student musicians playing on stage at a planned event at noon on a Saturday may operate at higher volume than the same musicians at 2 a.m. outside a residence or at 2 p.m. on a Tuesday in the area immediately outside a building where classes are being held. These are just a few examples of the different contexts in which campus speech occurs. The pages of this website provide more examples , but the expression of ideas is so central to the university’s mission that it is actually impossible to catalog all the different times and places where it might occur; instead, we have general rules that are meant to be applied consistent with our overall mission of research and education and the commitment to free expression that mission requires.

There are hard questions of both policy and practicality in trying to craft rules that protect the right of everyone on campus to speak and learn in an atmosphere of openness and curiosity; we invite further dialogue with the campus community in the coming year on how further to improve our policies to create an atmosphere of vigorous and constructive discourse at Stanford.

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Democracy & justice, why is freedom of speech important in a democracy: 5 reasons, why is freedom of speech important why is it a core principle in a democracy how is it being threatened how do we protect it, by eleanor brooks.

Updated on 21.05.2024 by Una Glatz

Knowledge is power. Your contribution counts.

What is freedom of speech?

Freedom of speech is one of the core pillars upholding the democratic process and protecting it is essential if we want to live in a society that is fair and equal for everyone. Failing to do so weakens democracy.

Every time you share a news story on your social media channel, attend a protest, or write to your local politician about an issue you care about, this is free speech in action. Not just any speech is considered free speech. For example, having an argument around the dinner table about whether or not to eat your vegetables is not considered free speech.

We all deserve to have our say

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

Free speech gives us our voice

Free speech exists when citizens can express their opinion – including views that are critical towards the government - without fearing negative consequences, such as being put into prison or receiving threats of violence.

In 2000 freedom of expression was enshrined as a fundamental right in Article 11 of the Charter of Fundamental Rights of the European Union:

• Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
• The freedom and pluralism of the media shall be respected.

However, the definition of free speech does not protect every kind of speech. Like all fundamental rights the right to freedom of expression is not absolute, meaning it can be subject to limitations provided they have a legal basis. The limitations must meet two conditions: 1) they are proportional - the limitations are no stronger than needed to achieve their aim 2) they are necessary and genuinely fulfill objectives in the interest of the general public or are needed to protect the rights and freedoms of others.

Therefore, someone who engages in criminalised forms of speech such as hate speech, terrorist content or child pornography cannot defend themselves by relying on their right to freedom of expression.

Why is freedom of speech important in a democracy? Why is it a core principle?

Democracy’s goal is to have a plural and tolerant society. For this to happen successfully, citizens should be able to speak freely and openly about how they would like to be governed and criticize those who are in power.

This exchange of ideas and opinions isn’t just a once off on election day, rather it is an on-going two-way communication which happens throughout a government’s term.

1. It battles for the truth

To enable citizens to make meaningful decisions about how they want society to function, they need access to truthful and accurate information about a wide variety of topics. This can only happen if people feel safe vocalizing the issues affecting their communities.

Safeguarding freedom of speech encourages people to speak out, which makes it easier to tackle systemic issues from the inside. This deters people from abusing their power, which helps everyone in the long run.

2. It makes everyone more accountable

When it comes to elections, citizens are given the opportunity to hold their politicians accountable. In order to decide who to vote for, they need to understand how well a political party has performed while in power and whether or not they fulfilled their election promises.

By reporting on society’s most pressing social issues, media outlets and civil society organisations (CSOs) contribute to the public’s perception of how well the government is doing. However, this is only helpful if they are free to truthfully cover stories that are critical of the state.

3. Active participation of citizens

Elections and referendums are a good opportunity for citizens to shape the direction of society, but they only come round every couple of years.

Free speech reinforces other fundamental rights such as freedom of assembly, which citizens exercise to influence public decision-making by attending protests, demonstrations or participating in campaigns.

This allows them to protest an unpopular decision, such as the ban on abortion in Poland, or show the government they want stronger political action on an important issue. When protestors in Germany filled the streets in their hundreds of thousands protesting the war in Ukraine, this sent a strong message to the government that the people supported strong sanctions against Russia.

A more recent positive example of the effects freedom of assembly and active participation has, can be seen in Poland. The opposition was able to rally political participation through large pro-democratic protests before the election in October of 2023 . Their subsequent win ousted the PiS, which was systematically dismantling principles of democracy in Poland. This shows how exercising the right to freedom of assembly and free speech helped save Poland's declining democracy.

4. Promotes equal treatment of minorities

In a democratic society everyone should be treated equally and fairly. However, minority groups who are underrepresented in government are often side-lined, and their opinions' neglected in favour of those belonging to the dominant social group.

By campaigning and speaking openly about the issues faced by their communities, marginalized people can gain widespread public support for their cause. This increases their ability to influence public agenda-setting and put an end to human rights abuses.

Speaking up starts with getting informed.

5. necessary for change and innovation.

We all want society to become better for everyone, but for that to happen society’s need to encourage and foster freedom of expression. Authoritarian governments who suppress criticism and withhold public interest information deny citizens the right to make informed decisions or take action about important social issues.

Concealing vital intelligence causes problems to fester and worsen. This hinders progress and makes finding a solution much harder when the issue finally comes to light.

For example in China, the doctor who attempted to warn the medical community of a deadly virus – Covid-19 – was told to "stop making false comments" and was investigated for "spreading rumours". This had the devastating effect of delaying the introduction of measures to contain Covid-19, which resulted in a global pandemic and millions of deaths.

How is freedom of speech being threatened?

1.government.

Authoritarian governments whose primary aim is to stay in power want to ensure that any media coverage is favourable. In order to control the public narrative, they appoint political figures to media authorities and exercise financial and editorial control over mainstream media outlets. As reported by our member organization in our 2022 Media Freedom Act . Hungary is an egregious example of this where over 80% of the media market is controlled directly or indirectly by the Hungarian government.

Governments use restrictive legal reforms, crowd control by police or exceptional emergency measures to curb freedom of expression.

As an emergency response during the Covid-19 pandemic countries such as Belgium, Bulgaria, Germany, Slovenia and Spain disproportionately curtailed exercise of the right to protest in the interest of public health through heavy-handed policing and the arrest of activists.

Other legal tools used by the state to control the flow of information is to criminalize the spread of false information or deny access to information.

In Russia, the invasion of Ukraine is referred to by Putin as a “military operation” and it is understood amongst Russians that using the word ‘war’ will put them afoul of the “fake news” laws which could land them with a prison sentence of up to 15 years. As a result, many Russians who oppose the war are cowed into silence, while others aren’t aware of the truth of what is happening.

3.Attacks on journalists, CSOs and Whistleblowers

Politicians and powerful figures who fear journalists will expose their corrupt behaviour resort to dirty, extra-legal tactics to silence them. Common strategies include legal harassment through SLAPPs (strategic lawsuits) or smear campaigns aimed at discrediting critical CSOs .

Whistleblowers have faced devastating personal consequences for shedding light on activities against the public’s interest such as corruption, illegal activities or malpractice.

Journalists and civil rights defenders are also increasingly in danger of verbal or physical violence, including by police.

Hate speech or online trolling can create a hostile digital environment which discourages women and margainlized people from participating in online social debates.

However, well-intentioned efforts to tackle this issue can inadvertently create the same silencing effects.

The European Union is currently pushing through the Digital Services Act , aimed at making the internet a safer place and protecting freedom of expression online. However, its proposed solution to stamp out disinformation could do the opposite. In our letter to MEPs we advised against the mandatory use of upload filters to remove harmful online content, as they are not sophisticated enough to distinguish between humour and abuse. If used, they could limit free speech online.

5. Self-censorship

When freedom of speech is under attack, it sends the message that telling the truth can put you in danger. The ambiguity that exists around what is acceptable or not leads people to tread with caution, so they begin to self-censor . Our 2022 Media Freedom Report found that journalists in Bulgaria, Germany, Hungary, Italy, Slovenia and Sweden were self-censoring due to online attacks or harassment.

How to protect freedom of speech?

In order to safeguard free speech, there should be laws in place which protect individuals and organisations who are threatened for exposing corruption or unethical behaviour. Journalists, watchdogs, activists and whistleblowers should be given robust legal protection which enables them to carry out their work safely and shields them from retaliation from those seeking to silence them.

This is why Liberties is working hard to campaign for better laws to safeguard media freedom. The Media Freedom Act (MFA) currently being drafted by the European Commission has the potential to make a real difference. We sent the Commission our Media Freedom Report auditing the state of media freedom in 15 EU countries, as well as a policy paper outlining recommendations which we believe the MFA should address. It should include measures to further transparency in media ownership and elaborate on rules on how to make journalistic work more safe.

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

by Geoffrey R. Stone

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

by Eugene Volokh

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Money, Politics, and the First Amendment

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

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

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

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

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

The Meaning of “Low” Value Speech

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

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

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

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

Leaks of Classified Information

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

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

Professional-Client Speech

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

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

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

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

Crime-Facilitating Speech

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

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

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

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

“Hostile Environment Harassment” Rules

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

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

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

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

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Floyd Abrams Institute for Freedom of Expression

The Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, access to information and government transparency. The Institute’s activities are grounded on the belief that collaboration between the academy and the bar will enrich both scholarship and practice.

The Abrams Institute is made possible by a generous gift from Floyd Abrams, one of the country’s most important defenders of freedom of speech and press. Mr. Abrams is a prominent Yale Law School alumnus who has also taught at the school. The Abrams Institute is administered by Yale’s Information Society Project. Its faculty director is Professor Jack Balkin and its Executive Director is Chinmayi Arun.

An important part of the Abrams Institute is Yale’s Media Freedom and Information Access Clinic (MFIA) . Yale Law School students in the clinic assist in litigation, draft model legislation, and advise lawmakers and policy makers on issues of media freedom and information access. The MFIA clinic authors amicus briefs and promotes scholarship and law reform on questions that affect both traditional and new media.

The Institute also organizes conferences and events on issues connected to the First Amendment; access to information; and Internet, media, telecommunications, and privacy law. These events include an annual Freedom of Expression Scholars Conference (FESC) , practitioner-scholar conferences on novel First Amendment issues, and a series of topical speakers and panels.

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Freedom of Speech and Expression

Freedom of speech & expression policy.

Freedom of expression protects the rights of individuals to express diverse viewpoints, beliefs and opinions, even when they are unpopular. The Freedom of Speech and Expression Policy, updated in 2024, outlines the university's commitments and expectations in this area.

Full Policy

Frequently Asked Questions

What is free speech (freedom of expression) at osu.

Freedom of speech (also called freedom of expression) is a fundamental right guaranteed by the U.S. and Oregon constitutions. While, in many contexts, individuals have a right to make statements whether they are popular or unpopular, agreeable or offensive, Oregon State community members share a responsibility to treat each other respectfully, including when discussing or debating controversial topics.

What is OSU's responsibility to protect free speech?

For purposes of the free speech clause of both the federal and state constitutions, Oregon State University is “the government,” and so the institution is limited in its ability to restrict freedom of speech, even if the content is considered offensive or hateful. The university cannot prohibit speakers from coming to campus just because individuals from the campus or surrounding community disagree (or OSU disagrees) with the content of the speaker’s presentation or with their opinion.

What is hate speech? Is it illegal?

Hate speech is often referred to as speech that insults or demeans groups of people on the basis of, but not limited to, the attributes of race, religion, ethnic origin, sexual orientation, disability or gender. While OSU condemns hate speech of this kind, it is often not illegal or unconstitutional, especially in public forums like quads. Prohibiting or punishing because of hate speech may be a violation of the First Amendment.

There are times that OSU may be able to take action or otherwise regulate speech, such as when the speech constitutes a direct threat of imminent physical harm against a particular person, constitutes severe/pervasive harassment impeding a particular person’s educational opportunity or creates a substantial and material disruption or interference of university business.

Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said. OSU community members share a responsibility to treat each other respectfully, including when discussing or debating controversial topics.

What's not protected free speech?

Free speech law is highly context-specific and complex, but some examples of unprotected speech include specific threats of violence against individuals, speech constituting targeted harassment under the student conduct code and speech that is exercised in ways that significantly disrupt the operation of the university or the legal rights of others.

What if an OSU community member disagrees with someone’s speech?

It is inevitable in a community as diverse as OSU for disagreement to occur. This disagreement is a feature of a pluralistic community. At times, some may find the content of views expressed offensive, objectionable or contrary to the university's institutional values. Rather than silence these views, we meet them directly by seeking clarity, offering countervailing evidence and providing counterpoints. While this may create discomfort, our commitment to protecting all viewpoints, even when we may strongly disagree with them, guarantees that all can speak.

How does OSU policy handle controversial speakers?

The university sets limits on an outside speaker’s presence at OSU that aren’t related to the speaker's viewpoints. Those limits include setting reasonable time, place, and manner restrictions with the goal of limiting potential disruption of university business. Many university buildings are open to the public and the university community for non-disruptive speech activities during the regular business hours of the particular building, with the exception of some buildings that are more tightly regulated due to the nature of the activities that take place in those buildings (such as classroom buildings, research labs/facilities and offices).

Generally, the university is not going to be in a position to cancel events or restrict controversial speakers based on the offensiveness of the speaker’s message. There may, however, be a decision to cancel an event or restrict a speaker from speaking at the university if there is a significant safety risk, despite taking all reasonable steps to support the safety of students, faculty and staff.

Are community members allowed to disrupt speakers they disagree with?

The right to free expression does not include the right to prevent others from speaking. And while protest, regardless of viewpoints expressed, is a welcome and essential part of university life, disruption of speakers or preventing the normal operation of the university are not permitted and violate university policy.

How does OSU address emotional harm people and groups may experience as a result of someone else’s free speech?

Free expression does not come without impacts. While we must vigorously protect the right to express diverse viewpoints, even protected speech can cause harm. We recognize the need to support individuals and communities negatively impacted by speech, and OSU offers many resources for individuals and communities to address these impacts.

Additionally, in some cases, like when speech calls for specific violence or harm, speech can cross the line into harassment or discrimination that violate university policy. All OSU community members are encouraged to report any such incidents to Equal Opportunity and Access or the Bias Response Team.

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freedom of speech

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

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Article 10 U.K. Freedom of expression

1 U.K. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 U.K. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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Freedom of expression at UD

At the University of Delaware, we are unwavering in our commitment to fostering an environment where free expression thrives, recognizing it as a cornerstone of our educational mission. We believe that the open exchange of ideas, including those that may challenge or provoke, is essential for intellectual growth, advancement of knowledge and development of independent thought.

Our policies and Code of Conduct reflect the University’s dedication to inclusivity, respect and the dignity of all individuals. While we champion the right to free expression, we acknowledge that this freedom comes with responsibilities. The University adheres to legal and institutional standards that regulate speech, particularly when it crosses into harassment, incites violence or disrupts University operations.

We strongly condemn speech that promotes prejudice or discrimination, while remaining steadfast in our commitment to protecting free expression. We do not censor or punish individuals simply for expressing unpopular or controversial viewpoints. Instead, we encourage our community to engage with differing opinions through respectful dialogue and peaceful protest, understanding that no one is free from criticism. Our role as an academic institution compels us to protect the rights of all members of our community, including those who express dissenting views.

The University of Delaware is a place where diverse perspectives are not only welcomed but are vital to our collective pursuit of learning. We are dedicated to ensuring that every member of our community can contribute meaningfully to the discourse that drives societal and personal growth.

Frequently Asked Questions

The first amendment protects free expression. what does that mean.

The First Amendment safeguards both speech and various forms of expressive activities, including plays, satire, political cartoons, protest armbands, political buttons, and slogans on T-shirts, among others. It also protects employees' rights to speak as private citizens on matters of public concern. It is designed to protect individuals’ rights to express their thoughts and opinions without government interference or regulation.

Are all types of speech and expression protected?

No, several types of speech and expression are not protected under the First Amendment, including but not limited to:

True threats: These are statements where the speaker intends to convey a serious intent to commit an unlawful act of violence against a specific person or group.

Fighting words: This is speech directed at an individual that is likely to provoke an immediate violent reaction.

Obscenity (including child pornography): This material may be considered obscene (and therefore not protected) if it (1) appeals to a prurient interest in sex, (2) is patently offensive according to community standards, and (3) lacks literary, scientific or artistic value.

Incitement: The U.S. Supreme Court has held that there needs to be a significant likelihood of imminent illegal activity, and that the speech is directed at inciting such activity. For example, if a speaker on campus urges the audience to engage in vandalism or destruction of property, the speech is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.

Defamation: This is a false statement about an individual, made intentionally and publicly in written form (libel) or spoken form (slander), that causes harm to that individual.

Can the University restrict speech protected by the First Amendment?

The University can impose restrictions on speech that is protected under the First Amendment, but these restrictions must be narrowly tailored and cannot be based on the content of the speech. Common restrictions include regulations related to the time, place and manner of expression, provided they are applied equally and do not suppress specific viewpoints.

What are “time, place and manner” restrictions?

The Supreme Court has recognized that places like a university can regulate the "time, place and manner" of speech. This means that the right to speak on campus does not guarantee the freedom to do so at any time, in any location, or in any manner a person chooses. The University of Delaware can control when, where, and how speech occurs to ensure the smooth operation of the campus and to meet important objectives, such as maintaining public safety. For events involving controversial speakers, for example, the University of Delaware can exercise this authority to schedule events in ways that maximize their success and minimize risks to campus safety. The University relies on the recommendations of its police department to determine the best ways to hold safe and successful events. For instance, the University might use its time, place and manner discretion to ensure that an event featuring a highly controversial speaker is held in a venue that campus police consider secure, such as one with multiple exits, the ability to be cordoned off, and no floor-to-ceiling glass. This need to consider time, place and manner regulations is why students are required to coordinate with the administration when planning their events, rather than scheduling and organizing them independently.

How does the First Amendment apply to controversial speakers invited by student organizations?

The University cannot ban or penalize speech based on its content or viewpoint. Since student organizations have the right to invite speakers to campus and use campus facilities for this purpose, the University cannot revoke that right or restrict those resources due solely to the speaker's views. An event featuring an invited speaker can only be canceled or declined under exceptional circumstances, outlined in the above “Are all types of speech and expression  protected?” section. Additionally, once a speaker is invited by a student group, the University is obligated to take reasonable steps to ensure that the speaker can safely and effectively address their audience without facing violence or disruption.

Does the First Amendment protect hate speech?

The term "hate speech" does not have a specific legal definition in the United States, though it generally refers to speech that insults or demeans individuals or groups based on attributes like race, religion, ethnicity, sexual orientation, disability or gender. While the University of Delaware strongly condemns such speech, there is no "hate speech" exception to the First Amendment, making it illegal only if it falls into one of the categories mentioned earlier. The Supreme Court has repeatedly ruled that prohibiting or punishing hate speech violates the First Amendment. However, just because the First Amendment protects the right to express hateful ideas doesn't mean those ideas should be voiced. As a campus, we strive to foster a community where no one chooses to spread hate.

If it is known that a controversial speaker's event might incite physical violence, is that sufficient grounds for the University to cancel the event?

The Supreme Court has held that the First Amendment does not allow the prohibition of speech merely because it may provoke a hostile reaction. Preventing speech before it happens is known as "prior restraint," and such actions are almost never permitted. While the University is required and committed to safeguarding speakers and preventing disruption or violence, a speaker's event may only be canceled or declined if, despite all efforts by the university, there is a significant threat to public safety and no other viable alternative. This is an absolute last resort and is never done based on the speaker's views. The university's foremost priority is to ensure the safety of its students, staff, and faculty.

Can I demonstrate or protest against an invited speaker?

Yes, you can demonstrate or protest against an invited speaker, provided that such activities are conducted in accordance with University policies regarding time, place and manner. Protests should be conducted peacefully and should not disrupt University operations or infringe on the rights of others. Here are some guidelines for safe protesting:

Avoid actions that infringe on others' rights, such as blocking movement or access.

Do not attempt to prevent that speaker from speaking by disrupting the event or shouting over a speaker. Those actions are likely not to be protected by the First Amendment as it violates the free speech rights of the speaker. 

Follow lawful instructions from police officers or public officials, such as remaining behind barricades, dispersing when an area is declared an unlawful assembly, and not resisting arrest. Disobeying a lawful order from a police officer is illegal.

Leave areas where illegal activities or violence are taking place. Your presence could be seen as participating in a riot or unlawful group action. Staying overnight in campus buildings after hours is not allowed.

Avoid speech that encourages others to commit violent acts like pushing, kicking, spitting, property destruction, or other illegal activities.

Make informed choices. If you decide to engage in civil disobedience and face arrest, be aware of the potential consequences.

What is a “heckler’s veto”?

Individuals or groups are not allowed to silence others by shouting over them or otherwise obstructing their ability to be heard, an action commonly referred to as a "heckler’s veto." While it is acceptable to protest speakers on campus with whom you disagree, it is not permissible to take actions that hinder the speaker from sharing their views or that stop the audience from hearing or seeing the speaker.

Can the University of Delaware prohibit discriminatory harassment?

Yes, the University of Delaware can prohibit discriminatory harassment that creates a hostile environment or denies equal access to educational opportunities, as such harassment can be regulated under Title IX and other federal and state laws. This prohibition is consistent with both legal requirements and the University’s commitment to a safe and inclusive campus environment.

What rights do I have as a University employee?

Employees may express their personal views and engage in expressive activities outside of work hours. When doing so, it’s important for employees to be clear they are speaking as private citizens, not as representatives of the University, or within the scope of their employment.

Can the University of Delaware stop someone from saying offensive or hurtful things on public property near or adjacent to campus such as public sidewalks?

The University of Delaware cannot prohibit speech on public property such as city sidewalks that are adjacent to campus. The City of Newark also cannot prohibit speech on public property solely because it is offensive or hurtful, as long as it does not fall into categories of unprotected speech (e.g., harassment, incitement to violence). The University and/or the city cannot control speech that occurs on public sidewalks or areas near campus.

Does the First Amendment apply to chalking on campus?

Yes, the First Amendment applies to chalking on campus as a form of free expression. However, the University can regulate chalking in terms of the locations where it is permitted and ensure that it does not damage property or disrupt university operations. See here for more information.

Can I erase or chalk over messages or take down displays or posted signs that I find offensive?

No, while individuals may feel compelled to erase or chalk over messages, and/or remove or tear down displays they find offensive, the University's policies on campus expression must be followed. It is important to address concerns about offensive messages through appropriate University channels rather than taking unilateral action that may conflict with campus policies.

Can the University of Delaware prevent speakers from coming to campus who have a history of criticizing groups of people based on protected characteristics?

The University of Delaware cannot prevent invited speakers from coming to campus solely based on their history of criticizing groups of people based on protected characteristics, as long as their speech does not fall into categories of unprotected speech (e.g., harassment, incitement to violence). The University must apply its policies consistently and fairly.

What type of expressive activities are prohibited on campus?

The following expressive activities are prohibited on the campus of the University of Delaware:

Posting or placing any objects or materials, such as signs or posters, outside of designated areas.

Affixing anything to campus buildings, structures, benches, statues, fountains or natural landmarks.

Setting up standing signs or structures (e.g., sandwich boards or tents) on University grounds.

Obstructing building entrances, corridors, roads or pathways (expressive activities are allowed on pathways as long as they do not impede the movement of pedestrians, emergency vehicles, or accessibility vehicles).

Covering your face to conceal your identity in order to avoid accountability while breaking campus rules or engaging in illegal activities.

Refusing to provide identification when requested by campus personnel who have shown their credentials and are enforcing University policies.

Interrupting or obstructing University operations.

Additional Resources

For more information, please review these policies, procedures, and programs., university of delaware policies.

Non-discrimination

Political activity and lobbying

Use of digital media and multimedia

Use of University facilities by external groups

Use of University facilities by registered student organizations

Student Resources

• Event planning at UD
• Events with University Student Centers Registered Student Organizations (RSO) rights and responsibilities
• Policy on the use of University spaces for events and displays
• Student Code of Conduct

Faculty and Staff Resources

Administrative policy manual

Faculty Handbook

Faculty Senate rights and responsibilities

Working at UD

Safety Resources and Reporting

Non-emergency: 302-831-UDPD (8373)

Emergency: 911

Newark Police Department

Non-emergency: 302-366-7111

Office of Community Standards and Conflict Resolution

Office of Institutional Equity

You may submit a report to the Office of Institutional Equity if you believe your freedom of speech and freedom of expression has been suppressed or violated.

Live Safe app

Available for download in Apple Store and Google Play

Safety and Wellness at UD

Sexual misconduct and discrimination reporting

Registration

Counseling Center Services

Division of Student Life

Office of the Dean of Students

Office of Internal Audit

Student Diversity, Equity and Inclusion

University of Delaware Police Department

President Assanis: Upholding free speech at UD >

"Here at the University of Delaware, each has the responsibility to foster an atmosphere that promotes the free exchange of ideas and opinions. Everyone has the right to benefit from this atmosphere."

Dennis Assanis President

Freedom of Speech FAQ

Frequently asked questions.

Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more. Below are some frequently asked questions regarding Freedom of Speech.

Can the University restrict speech on campus? Click to Open

Yes, but any restrictions must be content-neutral and narrowly tailored to serve a significant government interest. This generally means the University can regulate the time, place, and manner of speech to ensure minimal interference with campus operations and access.

What are time, place, and manner restrictions, and how do they relate to public forum free speech? Click to Open

The Supreme Court allows public entities, like the University, to regulate the "time, place, and manner" of speech. As a publicly funded institution, the University designates specific spaces for free speech. This includes managing resources such as staff time, space, and public safety, all while balancing its educational mission with legal obligations.

Can the University restrict speech because it is controversial? Click to Open

University policy cannot override the Constitution. Restricting speech based solely on its controversial nature jeopardizes everyone's rights. The same laws protecting controversial speech also safeguard the rights of those advocating for peace, justice, fairness, and equality.

What is the University’s official position on controversial speech? Click to Open

The University is committed to protecting the free exchange of ideas. Academic freedom requires that all ideas be given a fair chance to succeed or fail on their own merit. The University remains neutral, ensuring equal safety and respect for all speakers. As Thomas Jefferson said, "here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."

What is the University’s response to bigoted or offensive speech? Click to Open

SUNY Fredonia supports a safe environment for all constitutionally protected speech, regardless of content. The University encourages discussion and debate on controversial topics through forums and symposia.

How should I respond to controversial speech? Click to Open

Freedom of speech and academic freedom can be challenging, especially when faced with ideas that offend or contradict personal beliefs. Critics cannot silence speech they disagree with. You have the right to respond with your own protected speech—talking, distributing literature, displaying signs, or singing—but you cannot threaten, harm, or create a situation where the speaker cannot be heard. Ignoring a controversial speaker is also a valid form of dissent, denying them the attention they seek.

Is there a way for the campus community to report issues related to biased and/or harmful speech? Click to Open

Fredonia has a Bias Response Reporting process in place as a support for members of our community who experience such incidents. We condemn and take appropriate action against individuals who engage in acts of hatred, bigotry, racism, intolerance and violence on our campus. Questions about this process can be directed to the Office of Diversity, Equity and Inclusion (716-673-3358 or [email protected] ).