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One of the fundamental rights of the citizens of India is ‘Freedom of Speech’. This is allowed to the citizens by a lot of countries to empower the citizens to share their own thoughts and views. This freedom of speech essay is for students of class 5 and above. The language used in this essay is plain and simple for a better understanding of the students. This freedom of speech essay example will help the students write a paragraph on freedom of speech in their own words easily.
Long Essay on Freedom of Speech
The phrase “Freedom of Speech” has been misinterpreted by some individuals who either do not actually understand the meaning of the phrase completely or have a totally different agenda in mind altogether. Every democratic country gives its citizens this freedom. The same is guaranteed by the Constitution of India too. Irrespective of your gender, religion, caste, or creed, you are guaranteed that freedom as an Indian. The values of democracy in a country are defined by this guaranteed fundamental freedom. The freedom to practice any religion, the freedom to express opinions and disagreeing viewpoints without hurting the sentiments or causing violence is what India is essentially made up of.
Indians stand out for their secularism and for spreading democratic values across the world. Thus, to save and celebrate democracy, enforcing freedom of speech in India becomes a necessity. Freedom of speech is not only about the fundamental rights, it’s also a fundamental duty to be done by every citizen rightfully so as to save the essence of democracy.
In developed democracies like the US, UK, Germany or France, we see a “freedom of speech” that is different from what we see in authoritarian countries like China, Malaysia or Syria and failed democratic countries like Pakistan or Rwanda. These governance systems failed because they lacked freedom of speech. Freedom of press gives us a yardstick to gauge the freedom of speech in a country. A healthy, liberal and strong democracy is reflected by a strong media presence in a country, since they are supposed to be the voice of the common people. A democracy that has a stomach for criticisms and disagreements is taken in a positive way.
Some governments get very hostile when faced with any form of criticism and so they try to oppress any voices that might stand against them. This becomes a dangerous model of governance for any country. For example, India has more than hundred and thirty crores of population now and we can be sure that every individual will not have the same thought process and same views and opinions about one thing. A true democracy is made by the difference of opinions and the respect people have for each other in the team that is responsible for making the policies.
Before making a choice, all aspects and angles of the topic should be taken into consideration. A good democracy will involve all the people - supporters and critics alike, before formulating a policy, but a bad one will sideline its critics, and force authoritarian and unilateral policies upon all of the citizens.
Sedition law, a British-era law, was a weapon that was used in India to stifle criticism and curb freedom of speech during the pre-independence era. Through section 124A of Indian Penal Code, the law states that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual can be fined or jailed or fined and jailed both. This law was used by the Britishers to stifle the freedom fighters. Today it is being used by the political parties to silence criticism and as a result is harming the democratic values of the nation.
Many laws in India also protect the people in rightfully exercising their freedom of expression but the implementation of these laws is proving to be a challenge. Freedom of speech cannot be absolute. In the name of freedom of speech, hatred, tensions, bigotry and violence too cannot be caused in the society. It will then become ironically wrong to allow freedom of speech in the first place. Freedom of speech and expression should not become the reason for chaos and anarchy in a nation. Freedom of speech was stifled when article 370 got revoked in Kashmir. Not that the government was trying to go against the democratic values, but they had to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.
Short Essay on Freedom of Speech
Freedom of speech allows the people of our country to express themselves, and share their ideas, views and opinions openly. As a result, the public and the media can comment on any political activity and also express their dissent towards anything they think is not appropriate.
Various other countries too provide freedom of speech to their citizens but they have certain limitations. Different countries have different restrictions on their freedom of speech. Some countries also do not allow this fundamental right at all and the best example being North Korea. There, the media or the public are not allowed to speak against the government. It becomes a punishable offence to criticize the government or the ministers or the political parties.
Key Highlights of the Essay - Freedom of Speech
Every democratic country gives its citizens the Freedom of Speech so as to enable the citizens to freely express their individual views, ideas and concerns. The freedom to be able to practice any religion, to be able to express individual secularism and for spreading democratic values across the world. In order to be able to save and to celebrate democracy, enforcing freedom of speech in India Is essential. Freedom of speech about fundamental rights is also a fundamental duty of citizens in order to save the essence of democracy. In a country, a healthy, liberal and strong democracy is always reflected and can be seen through a strong media presence, as the media are the voice of the common people. When faced with any form of criticism, we see some governments get very hostile, and they try to oppress and stop any kind of voices that might go against them. This is not favorable for any country.
A good democracy involves all the people - all their various supporters and critics alike, before they begin formulating any policies. India had the Sedition law, a British-era law that is used to stifle criticism and curb freedom of speech during the pre-independence era. The section 124A of Indian Penal Code, this law of sedition stated that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual, then he can be fined or jailed or both. Using freedom of speech, people spread hatred, unnecessary tensions, bigotry and some amount of violence too in the society. Ironically in such cases, it will be wrong to allow freedom of speech. The reasons for chaos and anarchy in a nation should not be due to Freedom of speech and expression. This law was stifled when article 370 got revoked in Kashmir, in order to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.
Freedom of speech gives people of our country, the freedom to express themselves, to be able to share their ideas, views and opinions openly, where the public and the media can express and comment on any political activities and can also be able to express their dissent towards anything they think is not appropriate. Different countries have different restrictions on their freedom of speech. And it is not proper to comment on that .In Fact, there are some countries which does not allow this fundamental right , for example, North Korea where neither the media nor the public have any right to speak against or even for the government and it is a punishable offense to openly criticize the government or the or anyone in particular.
While freedom of speech lets the society grow it could have certain negative outcomes. It should not be used to disrespect or instigate others. The media too should not misuse it. We, the people of this nation, should act responsibly towards utilizing its freedom of speech and expression. Lucky we are to be citizens of India. It’s a nation that respects all its citizens and gives them the rights needed for their development and growth.
A fundamental right of every citizen of India, the ‘Freedom of Speech’ allows citizens to share their individual thoughts and views.
FAQs on Essay on Freedom of Speech in English Free PDF download
1. Mention five lines for Freedom of Speech Essay?
i) A fundamental right that is guaranteed to citizens of a country to be able to express their opinions and points of view without any kind of censorship.
ii) A democracy’s health depends on the extent of freedom of expression of all its citizens.
iii) Freedom of speech is never absolute in nature.
iv) New Zealand, USA or UK rank high in terms of freedom of speech by its citizens.
v) A fundamental right in the Indian constitution is the Freedom of Speech and Expression.
2. Explain Freedom of Speech?
A fundamental right of every citizen of India, Freedom Of Speech allows every citizen the freedom and the right to express all their views, concerns, ideas and issues relating to anything about their country. Freedom of Speech is never actual in nature and has its limits too. It cannot be used for any kind of illegal purposes.The health of a democracy depends on the extent of freedom of expression of its citizens.
3. What happens when there is no Freedom of Speech?
A country will become a police and military state with no democratic and humanitarian values in it if there is no freedom of speech. Freedom of Speech is a fundamental right for all citizens, and a failure to not being able to express one’s ideas, beliefs, and thoughts will result in a non authoritarian and non democratic country. Failure to have freedom of speech in a country would mean that the rulers or the governments of those countries have no respect for its citizens.
4. Where can we get study material related to essay writing ?
It is important to practice some of the important questions in order to do well. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. Various essay writing topics, letter writing samples, comprehension passages are all available at the online portals today. Practicing and studying with the help of these enable the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease.
You can avail all the well-researched and good quality chapters, sample papers, syllabus on various topics from the website of Vedantu and its mobile application available on the play store.
5. Why should students choose Vedantu for an essay on the topic 'Freedom of Speech’?
Essay writing is important for students as it helps them increase their brain and vocabulary power. Today it is important to be able to practice some important topics, samples and questions to be able to score well in the exams. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. The NCERT and other study material along with their explanations are very easily accessible from Vedantu.com and can be downloaded too. Practicing with the help of these questions along with the solutions enables the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease.
6. What is Freedom of Speech?
Freedom of speech is the ability to express our opinions without any fear.
7. Which country allows the highest level of Freedom of Speech to its citizens?
The USA is at the highest with a score of 5.73.
8. Is Freedom of Speech absolute?
No, freedom of speech cannot be absolute. It has limitations.
Constitutional neutrality: an essay on the essential meaning of freedom of speech
Neutralidade constitucional: um ensaio sobre o significado essencial da liberdade de expressão
Revista de Investigações Constitucionais , vol. 6 , no. 2 , pp. 239-265 , 2019
Universidade Federal do Paraná
Received: 22 October 2018
Accepted: 17 November 2019
Abstract: The present essay explores the essential meaning of freedom of speech in the context of contemporary constitutional democracy. In addressing the question of how free speech constitutional clause should be understood in an universe full of controversial cases, the study articulates three main propositions: 1.Freedom of speech is the right not to be prevented from speaking or not to be punished for speaking based on the alleged unacceptability of an idea (taken as incorrect, inappropriate, stupid, irrelevant, shocking, dangerous, etc.); 2. Freedom of speech grants protection no matter the content of the message because the exchange of ideas is valuable for reasons other than the substantive qualities of what is said; to be worthy of protection, speech does not need to be infallible, clever or polite, but only play an expressive role in the process of discussion; 3. Freedom of speech doesn’t collide with rights of others, especially in the case of assertive speech acts, that is, assertions of facts and values that the speaker sincerely believes to be true or correct; even when the content sounds outrageous, asserting something doesn’t imply violation of anyone’s right, but rather it means the exercise of one’s own right.
Keywords: constitutional democracy, content neutrality, freedom of speech, tolerance, equity.
Resumo: O presente ensaio explora o significado essencial da liberdade de expressão no contexto da democracia constitucional contemporânea. Ao abordar a questão de como a cláusula constitucional da livre expressão deve ser entendida em um universorepleto de casos controversos, o estudo apresenta três proposições principais: 1. A liberdade de expressão é o direito de não ser impedido de falar ou de não ser punido por falar com base na suposta inaceitabilidade de uma ideia (tomada como incorreta, inapropriada, estúpida, irrelevante, chocante, perigosa, etc.); 2. A liberdade de expressão garante proteção qualquer que seja o conteúdo da mensagem porque a troca de idéias é valiosa por outras razões que não as qualidades substantivas do que é dito; para ser digno de proteção, o discurso não precisa ser infalível, inteligente ou polido, mas apenas desempenhar uma função expressiva no processo de discussão; 3. A liberdade de expressão não colide com direitos dos outros, especialmente no caso dos atos da fala assertivos, isto é, de asserções de fatos e valores que o falante acredita que sãoverdadeiras ou corretas; mesmo quando soe ultrajante, asserir algo não implica violação de direito alheio, mas significa o exercício do próprio direito.
Palavras-chave: democracia constitucional, neutralidade de conteúdo, liberdade de expressão, tolerância, equidade.
1. INTRODUCTION: A CRITICAL QUESTION
Constitutional democracy is a way of organizing relations between government and individuals inside national states. It is essentially characterized by the acceptance of a written or unwritten constitution that performs as a higher law and guarantees even against governmental powers certain human rights that, according to historical and rational agreement, people may never be deprived of, such as life, freedom, property, equality, due process and vote. Freedom of speech is probably the brightest star in the constellation of constitutional rights.
In a first approach, freedom of speech could be defined as a principle according to which individuals must have the liberty to hold and express ideas through oral language and writing, symbolic gestures or images, in any platform and concerning a variety of matters, from politics to religion, economy to history, without fearing or suffering censorship or punishment. However, despite of what this broad concept might suggest, freedom of speech is not conceived anywhere as a right that grants protection to everything that can be uttered. In free speech American legal doctrine, for instance, it is very well known the famous adage of US Supreme Court Justice Oliver Holmes, who proclaimed long ago that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 1 . This old sentence expresses a view that remains as one of the most powerful in free speech thinking and ruling everywhere: freedom of speech is limited, it does not cover all kinds of speech.
Some crimes committed with the use of language - like threats, slander, false alarms, harassment, conspiracy or blackmail - are considered unworthy of protection without contention. It seems they don’t even get to fit into a satisfactory concept of speech. But there are some other kinds of speech that raise serious controversy. Is the government allowed to prohibit the so-called hate speech, a flag burning demonstration, disclosure of classified information, civil disobedience advocacy, statements against gay marriage? Or would such a ban impose an unconstitutional constraint on speech? These are dilemmas that every democracy must face.
There are no easy answers. First, competitive values seem to be in contradiction sometimes. Hate speech cases, for example, bring to the debate the tension between the need of protecting individual autonomy and the commitment in defending racial, religious or sexual groups. Beyond that, language is a complex phenomenon. There are endless things people can say with the most different styles, intonation, motives and intentions, in the most diverse situations and settings. Hate speech itself is not a univocal category. As Kent Greenawalt observes, “criticizing Jews in a classroom discussion or in the middle of campus is not the same as reviling a Jewish student in his room or posting an anti-Semitic sign opposite his door” 2 . So, should we treat both speech in the same way? Should all hate speech be banned or protected, or only a part of it? Could we accept general racist assertions, but not personal targeted vilification?
To make things a little harder, constitutional stipulations are not able to provide solution for all possible situations of contentious speech. Generally, free speech constitutional clause is written in brief and open terms. Constitutional language does not usually refer to unprotected categories in an exhausting way or with enough specificity. American Constitution, for instance, dictates that “Congress shall make no law [...] abridging freedom of speech, or of the press” and nothing more. For this reason, in liberal legal systems judges have been called to fill the normative emptiness and to determine free speech limits in the context of controversial cases. It is a task that requires wisdom because of what is at stake in the decision-making process.
In fact, the question about how far to protect and how far to restrict speech is a critical one for democracy. Somebody who says something eventually forbidden is not only saying something inappropriate, unpleasant or repulsive, is not only challenging a good manners book. He is breaking the law, he is making something illegal, something that exposes him to official and severe consequences, such as civil liability or criminal penalty. So, defining protected and unprotected speech means to draw a line between speech that may be punished and that may not, between speech that may be used to send a man to jail or to take away his money and that may not, between speech that may be banned from public debate and that may not. It is not about defining good or bad ideas, polite or impolite speech, but rather than that, it’s about separating lawful from unlawful speech, with the good and the bad consequences attached.
Constitutional courts should be very cautious in interpreting and implementing the free speech constitutional clause. It is of utmost importance to create clear, simple and stable rules, capable of indicating without uncertainty and in advance what, after all, citizens are allowed or forbidden to say, or what the government is entitled to ban and punish concerning speech. In line with the basic principle of the Rule of Law, people have the right to prior knowledge about what is right and wrong, and a rhetorical, imprecise or hesitant judicial ruling on freedom of speech tends to generate self-censorship and opens the door for ex post facto punishments.
The present essay seeks to explore the essential meaning of freedom of speech in the context of contemporary democracy and aims at answering the question about how free speech constitutional clause should be understood. The intention here is not to describe the constitutional law of particular jurisdictions, but to propose a concept of freedom of speech consistent with the ideals of any government that claims to be democratic. Although involving a personal way to see the things, the following ideas are certainly influenced by a set of judicial precedents and correspond to a dominant philosophical viewpoint. In order to accomplish our goals, it seems a good idea to begin considering Oliver Holmes’s analogy on the false cry of fire.
2. THE FALSE CRY OF FIRE
In 1917, the United States got into the World War I. Under an atmosphere of patriotism around the country, President Woodrow Wilson proposed, and the Congress approved the Espionage Act 3 . This legislation made it a crime to cause, attempt to cause or conspire to cause insubordination in the American military or obstruction of military recruitment 4 . At the time, Americans could not turn down calls for war. Charles Schenck, then secretary general of the Socialist Party in Philadelphia, had distributed pamphlets comparing conscription to slavery and urging conscripts to reject fighting a war on behalf of Wall Street interests.
Prosecuted and convicted on charges of attempting to cause insubordination and to obstruct recruitment, Schenck appealed to the Supreme Court claiming that the First Amendment to the United States Constitution does not allow Congress to pass any law restricting freedom of speech. However, the Supreme Court, without dissent, upheld the conviction. The leading opinion came from Oliver Wendell Holmes. He admitted that, in normal times, Schenck’s words would be protected but not in times of war. He pointed out that “the character of every act depends upon the circumstances in which it is done” and that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. This view implied a non-absolutist reading of the apparently inflexible words of the First Amendment and, to support it, Holmes produced his famous analogy: “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 5 .
Schenck versus the United States is no longer an active precedent. The “clear and present danger” formula was too vague and could be easily manipulated. According to Kent Greenawalt, in a case decided the following week by the Supreme Court 6 , a man was punished for helping to publish twelve articles of small-circulation according to which the resistant recruits, tough “technically wrong”, were more victims of a sin against themselves than sinners. “Thousands of people were convicted and sent to jail during World War I for comments no stronger than this” 7 . Perhaps, that is why in Abrams versus the United States 8 Holmes himself rearticulated his arguments and introduced more demanding conditions for punishing speech 9 ; in Whitney versus California 10 Louis Brandeis set an even more restrictive position. The dissenting votes 11 of Holmes and Brandeis, in these two cases, became memorable and had significant influence in the development of the modern American legal doctrine regarding subversive speech. In 1969, in Brandenburg v. Ohio 12 (without Holmes and Brandeis at the time) the Supreme Court took a new legal opinion under which Schenck would not have been convicted, if earlier available.
Then, what may seem intriguing is that although the reasons that led to Schenck’s conviction no longer exist or would not be enough now, Holmes’s analogy on the false cry of fire still stands as an axiom about free speech limits. How to understand that? The reason is simple but not always perceived. Between a false cry of fire in a crowded theater to induce panic and the messages contained in the leaflets distributed by Schenck there is a huge difference. The analogy supposed by Holmes does not exist, and therefore, it is entirely acceptable that between the two communications one may deserve protection while the other does not.
According to Alan Dershowitz, the false cry of fire in a crowded theater is probably the only legal analogy to receive the status of a popular argument in the United States. It is, he says, an analogy often invoked when people try to get the government to censor any kind of speech that they deem unacceptable. However, still according to him, “in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered” 13 . The context to which Dershowitz refers is precisely the Schenck case, and it is important to follow his criticism to understand why the false cry of fire is not worthy of protection.
Dershowitz makes two essential remarks. First, Schenck’s leaflets contained a political message that encouraged recruits to think about it and then, if they wished, to act in a non-violent manner. The man who shouts fire in a crowded theater is neither sending a political message nor inviting his readers to think about it and decide what to do in a rational, calculated way. “On the contrary, the message is designed to force action without contemplation. The message ‘Fire!’ is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection” 14 . In this sense, the cry of fire is not even speech; it is “a clang sound”, the equivalent of a non-verbal alarm that triggers an automatic response, different from that of political rhetoric.
Secondly, the cry in question is dishonest, once the speaker knows that there is no real fire. The messages contained in Schenck’s leaflets, however, cannot be blamed of having the same flaw, it is to say, of being the result of a conscious and intentional lie. Schenck sincerely expressed political ideas about the war, ideas that are true in the perspective of the speaker’s mind, and as the United States Supreme Court came to reaffirm in Falwell versus Hustler , “the First Amendment does not recognize such a thing as a false idea” 15 . For these reasons, Dershowitz thinks Holmes analogy in the Schenck case is not only inappropriate but also insulting 16 .
In fact, it seems that the false cry of fire is something that is done by saying , not something that is only said . Whoever falsely shouts fire knowing there is no fire at all does not really asserts or warns about anything, but rather pretends to make it, faking to believe and intending to deceive the listeners. This is more acting than expressing. Only pay attention to the grammar: the verbs “lie”, “fake”, “pretend” and “deceive” denote deeds, or acts of misrepresentation, a kind of fraud, and not, in a proper sense, communicative acts of thoughts and beliefs.
The problem with the false cry of fire is not the content of the message, but the behavior of the speaker, is not the inaccuracy of the sentence, but the insincerity of the utterer. If there was a real fire, nobody would qualify shouting as a misconduct. If there wasn’t a real fire, but the speaker thought there was (because of defective perception or amid a delirium crisis), it is hard to imagine he could be punished since shouting would only be a manner of speaking his mind, a way of speaking about something he believed to be true, although it was not.
3. SPEECH AND EXPRESSIVE VALUE
In constitutional democracy, as we know, speech is often restricted by statutory law. Speech is a target that never gets out of reach. However, since there are cases in which restrictions are easily and widely accepted (as it happens about criminal offenses like encouragements to suicide), but there are others in which restrictions are seriously questionable (as it happens with religious statements against gay marriage), it is supposed that there might be some attribute related to the type of the speech that makes the difference. What would it be?
Even recognizing that every speech has singularities and needs to be considered on a case-by-case basis, it is possible to isolate a general point of discordance between the quiet and the controversial cases of speech restriction. The contrast between the false cry of fire in a crowded theater and the message contained in Schenck’s leaflets is useful to illustrate the difference. Simply, what happens is that the false cry of fire has no expressive value or does not fulfill any expressive function, and precisely for this motive, according to an assumption universally shared, it is not reached or covered by free speech constitutional clause. The note of distinction resides, therefore, in the concept of expressive value. The basic idea is as follows.
As it is normally understood, free speech grants protection no matter the content of the message. Free speech prohibits government to censor or punish speech based on the supposed incorrectness of what people think and say. In this case, it is intuitive that speech is protected because it is supposed to be valuable for reasons other than the substantive qualities of the message. Imagine, for instance, that the congress is about to pass an act on the use of embryonic cells for research purposes. If everyone can freely argue, against or in favor, it is because it is expected, among other things, that a better political deliberation can be found if the voices from side to side are listened. Speech is protected because it seems important despite the orientation of the ideas. It does not matter if one’s opinion is not the best or the wiser, but just that it somehow enriches the public debate. In this sense, having expressive value only means that the speech plays an expressive role in the process of discussion.
In synthesis, there are five major arguments on why freedom of speech is valuable no matter the content of the ideas. We can summarize them by borrowing a few words from Greenawalt . The first(democracy) proposes that free speech promotes the functioning of democracy, which is based on the concept of self-government. Citizens must be free to openly speak and listen to better exercise their sovereign functions. The second (truth) proposes that open discussion promotes the discovery of the truth and the progress of knowledge. The claim is that truth and knowledge are most likely to emerge from the collision of ideas. The third (autonomy) proposes that free speech promotes individual autonomy, mainly because it allows people to enjoy information and opinions important for them to make up their own minds instead of living by the dictates of others. The fourth (tolerance) proposes that free speech promotes tolerance. If the speech rights of dissenters and radicals are granted, the lesson addressed by society is that everyone should be tolerant with those who think different. The last one (equality) proposes that if men are all equal in dignity, it would be wrong to prevent only some ideas to be expressed, once this would mean that the ones who hold them are less dignified than others.
Speech has expressive value when it reaches some of these reasons; when none of them is applicable, speech simply lacks expressive value. The false cry of fire lacks expressive value because it is not the kind of assertion apt to be a part of any intellectual dispute around truth, it is not a way of engaging in the democratic process, or participating in political life, it is not a way of affirming or improving individual autonomy, it is not a way of exercising equal rights and, not enough, it is not compatible with a demand for tolerance.
The leaflets of Schenck were different. First, thinking and saying that conscription is a form of slavery is to make a genuine assertion, that is, to enunciate seriously and literally a proposition about the world (or some state of affairs) believed to be true and intended to be taken as such. Second, thinking and suggesting recruits to refuse the draft may be taken as an exhortation (a directive speech act), that is, as saying something to get others to act, but even so, it is not the case of incitement to violence, nor of advocating illegal activities, once deciding not to join the army, in the speaker’s mind, is no less than an individual right. In the end, it seems that Schenck’s message was a complaint for political changes based on his sincere beliefs about unfair burdens on young American citizens. Here, all free speech values apply.
Having expressive value is the first requirement for a speech to be deemed worthy of protection. It would be an exaggeration to immunize messages to which none of the reasons underlying free speech clause is applicable, as it happens with the false cry of fire. Accordingly, to determine whether a given speech has expressive value is vital for investigating the adequacy of some restriction upon it in constitutional democracy.
Of course, the concept of expressive value asks fora more comprehensive consideration, and at this point political philosophy is the best companion one can find 31 . Constitutional provisions proclaim the rights, but their justifications are generally submerged; they are not on the surface, but in the depths of the human thinking. Eric Barendt rightly points out that “a constitution may reflect commitment to a general concept of freedom of speech, but the particular understandings or conceptions of that freedom are best elucidated by an examination of the moral and political reasons justifying its protection” 18 . So, let’s take a closer look on them.
4. FREE SPEECH AND DEMOCRACY
Free speech is commonly thought to promote democracy. Democracy rests on the principle of self-government, whereby political decisions ultimately belong to citizens either directly or through representatives. In the logic of the system, freedom of speech fulfills central functions, such as allowing voters to make informed choices in elections. Also, thanks to freedom of speech, people can influence public policies, and authorities are subject to criticism that may lead to their replacement. Abuse of power and corruption can be denounced and maybe prevented by fear of revelation. Beyond that, conflicting interests in the community are identified and accommodated in favor of social stability, and individuals and minorities that openly dissent may relieve frustrations and do not need to use violence as an alternative to get power, to fight government programs or to gain attention for reformist claims. Finally, better political deliberations should be taken with the audience of all sides of debate.
The connection between freedom of speech and democratic process is the basis of some influential essays written by Alexander Meiklejohn regarding the Constitution of the United States 19 . In line with his ideas, in New York Times versus Sullivan , one of the most acclaimed precedents of modern American legal doctrine concerning freedom of speech, the US Supreme Court referred to the ability to criticize the government and its agents as constituting “the central meaning of the First Amendment” 20 .When the case was decided holding that civil liability of the press (in the event of inaccurate news) requires actual malice, and not merely negligence, Meiklejohn even said that it was “ an occasion for danc In g In the streets” 21 .
The rationale of democracy is subject to questioning. Does free speech really give voice to everyone in a world with economic inequalities? According to Owen Fiss, “the rich may, for example, so dominate advertising space in the media and other public domains that the public will, in effect, hear only their message, and as a result, the voice of the less affluent may simply be drowned out” 22 . Moreover, mass media are under the control of few people because newspapers and magazines demand a high cost of operation, and the waves of radio and television have limited availability. Those who have them have a higher power of influence. However, even if we are here before undeniable facts, it seems that none of them can make freedom of speech less important within the framework of democratic government.
The concept of democracy is impractical if citizens do not have the right to speak and listen freely. Distortions of power are relevant, and the challenge is to search for alternative means of compensating them positively or giving voice for those who doesn’t have it. But even if free speech seems to have more formal than real dimension in contrast with mass media holders, it does not mean it has no utility, or that it is not an instrument for the exercise of political rights. Besides, it is supposed that the press itself is many times the voice of the people.
Anyway, the Internet significantly changed the scenario. Things are not anymore as in the last century, in which people found themselves mostly in the passive side of the communicative relationship. Jack Balkin describes the new paradigm as it follows: “Internet speech is participatory and interactive. People don’t merely watch (or listen to) the Internet as if it were television or radio. Rather, they surf through it, they program on it, they publish to it, they write comments and continually add things to it. Internet speech is a social activity that involves exchange, give and take. The roles of reader and writer, producer and consumer of information are blurred and often effectively merge” . So, maybe the Internet has not replaced the mass media, but the distribution of the power to communicate seems already less unequal.
In connection with democracy, freedom of speech tends only to justify the coverage of ideas and messages with political content or interacting in the political process. So, if democracy was the only basis for protecting freedom of speech, things like self-help literature, commercial advertising, sports journalism and entertainment magazines would be left out of perspective. More important: the same could happen with allegedly defamatory or invasive statements. Probably, these types of speech would be understood as not belonging to the constitutional worries, and in this case, greater or lesser freedom related to them would then depend on the legislative power. But this is not how things are: freedom of speech is valued for reasons other than democracy, and then, it justifies much more than just political messages.
5. FREE SPEECH AND TRUTH
In On liberty, Stuart Mill claims that speech must be protected for the sake of clarifying the truth. According to him, the suppression of ideas is a crime committed against present and future generations. “If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose […] the clearer perception and livelier impression of truth, produced by its collision with error” 24 . Moreover, according to Mill, between conflicting doctrines none of them are wholly false or exact, and each contains a portion of error and truth, so that truth will often result from the sharing between them 25 . Thus, free speech enables mankind to replace long-held misconceptions, as well as to test and revitalize truths that would be, otherwise, no more than dead dogmas. In essence, as Erwin Chemerinsky said, “the argument is that truth is most likely to emerge from the clash of ideas” 26 .
Thomas Emerson stresses that the truth rationale applies regardless of how false and harmful an idea appears to be. On the one hand, he writes, “many of the most significant advances in human knowledge - from Copernicus to Einstein - have resulted from challenging hitherto unquestioned assumptions”, so that no opinion should ever be deemedirrefutable. On the other hand, “the unaccepted opinion may be true or partially true, and there is no way of suppressing the false without suppressing the true”. Last of all, “even if the new opinion is wholly false, its presentation and open discussion serves a vital social purpose” because it provokes the reappraisal of the settled opinion and leads to a deeper understanding of its evil meaning 27 .
The pursuit of truth is important as a means for the progress of humanity and individuals. For practical purposes, it is important to know, for example, whether the decisive factor for the reduction of the ozone layer is the burning of fossil fuels or the destruction of forests; what level of security the financial market is offering; what kind of influence movies of explicit brutality have on child psychology; from which moment the fetus in the mother’s womb begins to feel pain; whether or not there is an epidemic outbreak or increased violence in a requested tourist destination. Relevant social, business and personal decisions may depend on what is concluded, and, at least in principle, it is believable that responses that are more reliable or closer to the truth will be obtained if there is room for discussion and confrontation rather than suppression of opinions and information that governments might anticipate as false.
Truth rationale justifies coverage for a wide range of subjects (history, business, morals, literature, science, etc.), going beyond protection for speech with political content, or engaged in the democratic process. Although it seems to fit better in the context of controversies about objective facts, it does not fail to support the debate around purely moral valuations such as “capitalism is unjust”. Moreover, as in the case of democratic justification, truth rationale also supports dissent, even the most secluded one. In the words of Stuart Mill: “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind” 28 .
The decisive premise is that government is not entitled to sanction an official orthodoxy, defining what is right and wrong in politics, morals, history, archeology, economics, etc. Official doctrines against which is not allowed to argue under the risk of punishment are almost always suspect. Those who impose them not only lack the gift of infallibility but also are less interested in discovering the truth than in preserving their positions and fortune. Truth certainly has better changes when heresy and blasphemy are crimes that no law dares to recognize.
Like the democratic justification, the truth rationale is not immune to objections. It is said there is sometimes the risk that atrocious doctrines, undisputedly false, may triumph among citizens, as they did in Nazi Germany after Hitler came to power in 1933, causing the genocide of six million Jews. Some contemporary democracies, believing so, came to prohibit the dissemination of ideas of racial superiority, making hate speech a crime. Nevertheless, even in those jurisdictions, hate speech seems to be a lonely exception to the general principle that freedom of speech in democracy is incompatible with a system of official truths. It seems, indeed, a singular case of content-based restriction, perhaps one understandable in the face of some local context and historical traumas. However, the major proposition still stands: government is not the owner of the truth and cannot suppress ideas because they are allegedly false.
6. FREE SPEECH AND AUTONOMY
Free speech is commonly taken as an imperative of human condition. If what decisively distinguishes man in the world of living creatures is the reasoning ability, the integral fulfillment of each person’s humanity implies the exercise of his rational faculties in fullness. It requires, first of all, freedom to think autonomously, or freedom of conscience. By freedom of conscience is designated a sphere of intellectual deliberation under the exclusive domain of the individual, within which are ideas that, even sounding unfounded to others, are recognized as legitimate while belonging to a man and insofar as corresponding to the most significant of his vocations.
In practical terms, external control over the mind of others is not easy to attain. A man whose ideas are abhorred by the dominant power may be forbidden to say, under threat of penalties, what he thinks or be forced to say what he does not believe, and even doing so to save his life, in silence he can think what he actually thinks. Coercion will be enough to hinder speech and action but not to change his mind. The innermost secret of his consciousness is beyond reach; it is a land to which he alone has access. Frederick Schauer tells that prisoners in Nazi concentration camps used to sing a song called Me In e Gedänke S In d Frei (“my thoughts are free”) .It is possible that by chanting some of them gathered moral strength that helped to resist and survive, above all, through the perception that although degraded to inhuman conditions, there was still in them a last and essential remnant of humanity, precisely their consciences, an invincible force even for the most totalitarian power.
Of course, it would not make sense to assure something like a right to think silently. In a normative perspective, the object of a freedom must be something susceptible to prohibition. However, thinking in silence is a de facto freedom, a mental phenomenon whose ban is impossible and ineffective. Therefore, to begin with, granting individuals the right to think in silence is not even logically bearable. Besides, allowing someone to think, as long as keeping thoughts quiet, means declaring the thoughts in question illicit. Finally, respect for human condition requires more than tolerating only a precarious use of rational faculties, such as developing an inner monologue as a resource to maintain self-consciousness. This can be useful for psychological defense in extreme situations, but it is legally insignificant.
Freedom of conscience implies more than superfluous consent of secret ruminations. It means that our thoughts, whether wise or not according to others, rightfully belong to us. In a double sense: we are worthy of thinking by ourselves and our thoughts are worthy of appropriation. Thoughts we have are, therefore, lawfully possessed. Moreover, once integrating man’s personality, thoughts are not exposed to any form of expropriation. The first consequence is that freedom of conscience consists of an excludendi alios right, that is, a right that excludes the right of others of intending to dominate the owner’s mind, dictating what to believe, what to feel or what to like. The second consequence is that the owner has the privilege to use what is his, which includes the power to express himself, mainly to communicate to others what he believes, understands, feels, perceives or prefers. So, freedom of conscience understood as such inevitably implicates freedom of speech as a result of man’s property on himself.
At the same time, autonomy depends, though not exclusively, on freedom of speech to be maximized. Schauer teaches that ideas are not static, they regularly change, evolve, and refine. Thought is a process, and its main instruments are language and communication. “Minds do not grow in a vacuum. Intellectual isolationism is almost wholly inconsistent with intellectual development. The image of the mountaintop guru, developing great ideas in a sublime and isolated existence, is far more myth than reality” 30 . Schauer emphasizes that linguistic communication is significant for the intellectual growth of man, both as speaker and as listener. Often someone has an incipient idea, but sees it develop or perceive its weaknesses at the first moment when it needs to be intelligibly transmitted to another person. According to Schauer, communication helps those who communicate to clarify and better understand their thoughts. On the other hand, listening, reading and seeing what others have to say puts a man in touch with a wide variety of opinions and information that he may not be able to imagine or articulate alone. In this case, says Schauer, communication offers the chance to practice the vital talent of evaluating and choosing between ideas . Participating in communicative relationships is, therefore, a way of elaborating, understanding, and optimizing the ability to think.
For the constitutional law, which disciplines relations between individuals and the government, the implication between freedom of conscience and freedom of speech has a very specific meaning. In the words of Charles Fried, “freedom of mind […]places firm limits on government’s power to interfere with my liberty to think as I choose, to express my thoughts to others, and to receive their expressions in turn”, as well as to decide what to learn, hear, read, and see 32 . Likewise, Fried adds, it prevents the government not only from suppressing thoughts and speech “but also against the government’s putting words in your mouth, compelling you to print what you do not want to print, affirming what you do not believe”. Freedom of conscience is, in synthesis, “freedom from government mind control” 33 .
7. FREE SPEECH AND TOLERANCE
In The Tolerant Society , Lee Bollinger highlighted the teaching of tolerance as a reason for protecting speech. He starts from the premise that societies tend to follow and impose uniform ideas and practices and to be severe with dissenters, acting against them not only through legal penalties such as imprisonment but also through informal modes of punishment such as stigma and isolation. Stuart Mill also gave importance to this topic. According to him, social oppression is even more ruthless than legal oppression because although it is not based on extreme punishments, it leaves fewer ways to escape. In Mill’s view, human societies are predisposed to compel people to adjustment, curbing development and, if possible, preventing the birth of any individuality in disharmony with its models 34 .
Bollinger accepts the opinion about the tendency for inflexibility and the heaviness of social oppression. “To have it said that you were once a communist sympathizer, a fascist, atheist, or a liar can make you, at least in most quarters within the society, socially and economically a pariah, as destitute as if you had been thrown in prison and fined” 35 . However, according to Bollinger, social hostility is often at the basis of legal punishments. “If there is a problem of a tendency to excessive intolerance [….], it would seem to be not with the ‘government’ alone but with ‘the people’ as well, acting through their government” 36 . One of the most dramatic passages in the history seems to prove it. The torture and killing of Jesus Christ were formally consented by Pontius Pilate, procurator of the Roman emperor in Judea, but he acted reluctantly. According to the Gospel of John, Pilate washed his hands and delivered Jesus to martyrdom, but the one who imposed the outcome, at the risk of revolt, was the crowd in front of the Praetorium.
According to Bollinger, freedom of speech does the job of making people aware of the need for tolerance. If minorities and dissidents are free to express what they think, the message addressed will be that respecting differences is a virtue. Free speech aims at educating for tolerance, that is, for the development of the social capacity to control the impulse to domesticate and, especially, to punish the divergent because of their beliefs and convictions. A tolerant society is one that renounces the aspiration to coerce and harass by formal or informal means those who profess supposedly objectionable ideas, whether political, moral or religious.
The rationale of tolerance also suggests that intolerance is somewhat useless because human mind is ultimately irrepressible. Pretending to dominate the conscience of dissidents should not be an objective for the government because it is not even feasible. Baruch de Espinosa, in his Tractatus Politicus , had already argued that a man could never be led to believe in what is contrary to his feelings and thoughts, to love what he hates or hate what he loves. According to him, the consequence is that all actions to which no one can be incited by promises or threats are outside the government purposes. No one, for example, can abdicate his ability to judge. The law that would try to compel human mind would be nothing but a delusion .An analogous opinion is found in John Locke’s Letter on Tolerance . He thinks that no one may believe under the prescription of another. The nature of human understanding cannot be constrained by external forces. Confiscating property or tormenting the body with captivity and torture will be in vain if, through these torments, man in power want to deprive a man from his faith and beliefs 38 .
In addition, the argument of tolerance holds that more dangerous than granting free speech is subjecting speech to repressive controls. If force is futile and ineffective to constrain conscience, its employment will eventually provoke the resistance of true believers, and instead of harmony and concord there will be revolts, perhaps bloody ones. The religion wars that have swept Europe since the Reformation are attributed more to the persecutions of schismatics and heretics than to the diversity of faith among men. Therefore, from a pragmatic point of view, intolerance is regarded as more dangerous to social order than tolerating speech that is allegedly false or pernicious. At worst, tolerance would be a minor evil, a way to replace the power of the sword with “a form of hospitality” 39 ,giving peace a better chance.
The inability to submit human mind and the danger of violent resistance are reasons for political prudence against intolerance. In L’età Del Diritti (The Age of Rights), Norberto Bobbio claims that there are some noble reasons for tolerance. Tolerance implies exchanging methods of force by techniques of persuasion as a way of resolving conflicts; also, tolerance is an inherent necessity to the very nature of truth, which is not one and has many faces; and tolerance expresses our respect for others trough the recognition of every man’s right to believe according to his own conscience 40 . Thus, tolerance is not only convenient but the one option consistent with democratic governments, the search for truth and individual autonomy.
8. CONSTITUTIONAL NEUTRALITY
When freely speaking is a way of engaging in political life, of deepening, questioning and innovating our comprehension of the world, of expressing mental states, such as beliefs and feelings, or of indirectly educating individuals for tolerant behavior in social relations, speech is deemed valuable and worthy of protection just for performing a role by which free speech is cherished. So, the logical implication is this: the constitutional safeguard of freedom of speech is neutral as to the content of the speech, or the content of ideas.
The principle of neutrality means that a message has expressive value whatever the topic in question is. Any subject is worthy of being addressed: abortion, reincarnation, sodomy, Marxism, revolution, death penalty, adultery, and witchcraft. There are no proper and improper matters. There are no taboos. Also, having expressive value does not depend on the viewpoint. Being in favor (pro-choice) or against (pro-life) abortion makes no difference. Besides, saying something with expressive value does not depend on sounding good to others or being politically correct. It is allowed to spoil modesty, to challenge the unquestionable, to confront the dominant ethics. People are not confined only in sympathetic, condescending, virtuous, traditional opinions, nor only do have to speak with elegance and softness. Moreover, having expressive value does not require speech to be reverent to authorities or allied to government interests.
Constitutional neutrality leaves no room to distinguish between accurate and erroneous theories, intelligent and stupid comments, fair and unjust claims. In the eyes of third parties, lay people, scholars or authorities, some version of history may seem inexact, and the criticism of a literary work may sound unfounded. A religious feeling might seem foolish, an appeal for political reform might seem baseless. However, acceptance and receptivity are not conditions for protecting speech. The quality of what somebody says is undoubtedly a relevant predicate in science, philosophy, and religion. Constitutional law, however, does not separate in value the clever and the silly thinking. Freedom of speech indiscriminately values any speech compatible with the foundations of its protection. Provided that, however fragile, vulgar or unpleasant, speech is contained within the limits that allow it to be achieved by the underlying reasons of protection, it has expressive value.
If such a simple implication were not so neglected, some state judges in Brazil would not have done too much to ban the so-called Marijuana March in 2008. It was no more than a demonstration against anti-drug legislation, expected to occur in several capitals of the country. The value of the speech had nothing to do with the merit of the ideas. Whether or not the protesters were right or wrong and had or not a good cause did not matter at all. The only thing that counted is that they were citizens using their freedom to criticize legal canons and ask for new ones.
By the way, there is no difference between protesting against making marijuana use a crime and the law that imposes a tax, or that prohibits the naked in public. Somebody could argue that advocating drug release is tantamount to inciting a break of the law, and the adoption of criminal conduct. Nevertheless, it is an unfortunate mistake to confuse an appeal for changes in the law with a stimulus to break the law. Protesting the anti-drug law is not smoking or inciting smoking; it is only expressing beliefs and desires in harmony with free speech justifications. So obvious, the Supreme Federal Court reversed those injunctions, asserting that “the mere proposal of decriminalization […] is not to be confused with the act of incitement to commit the crime, or with the laudation of the crime, since debating criminal abolition of certain punishable conduct can (and should) be carried out rationally, with respect among interlocutors, although the idea, for the majority, may be considered strange, extravagant, unacceptable or even dangerous” 41 .
Constitutional neutrality hugely spreads the scope of free speech. Under democratic perspective, for example, even ideas tending to sound degrading will be sheltered. Hypothetically, if before a bill about to pass in parliament supporting same sex marriage someone asserts that it is a shame to have the government encouraging “unhealthy and indecent unions”, the message would be covered no matter the sexual prejudice it holds. Enacting legislation is the most genuine product of political agency. In a democracy, if some can argue in favor, others can argue against because all are equal in the right to choose a side and to speak about no matter the greater or lesser respectability of what they think and say. Since speech does not go beyond opposition to a legislative act, it is valuable and irrepressible.
Similarly, tolerance justification is not only applicable to the good and fair speech of minorities and dissenters against interests and practices of majorities and conservatives, which are considered backward and nefarious. It gives perhaps particular value to extremist thinking, one that almost any of us perceive as immoral and racist. A man’s comment in an interview that he hates blacks, Muslims and Jews could be the case. However, if freedom of speech intends to promote tolerance, the protection of extremism best meets such scope because it has higher symbolic significance and pedagogical utility. It is easier to live with the speech of minorities and dissidents when the content is politically correct. Nevertheless, the profound meaning of tolerance only becomes accessible before the shocking and scandalous thought. To form a tolerant society, which does not yield to the temptations to criminalize ideas under the pretext of being false or dangerous, requires pressing the tolerance principle to the extreme as a rule and without allowing casuistic manipulations. Moreover, if autonomy is a right, no man should be silenced under threat of legal punishment just because what he dislikes seems ignoble.
In the hypotheses described, free speech values undoubtedly apply. In the first situation, there is a moral argument against legalizing same sex marriage; in the second, there is a confession of aversion feelings toward some groups. Made in the assertive mode (not in incitement-to-violence, truly-threatening and fighting-words contexts, for instance 42 ), these imaginary (but always possible) statements are both supported, respectively, by the values of democracy and autonomy, and indistinctly by the broader rationale of tolerance.
Examples of detestable ideas are not restricted to the terrain of prejudice. Imagine someone who publicly holds dictatorship as a superior form of political organization, terrorism as a legitimate way to fight imperialism, the natural right of man to trade in his organs, the sin of protected sex by condoms, woman’s innate right to abort until the sixth month, criminal responsibility at ten years of age, the fairness of torturing war prisoners during interrogation. Even astounding, these ideas are worthy of protection in the light of free speech values.
9. FREE SPEECH AND EQUALITY
The contempt for the principle of neutrality would not only undermine the values of democracy, truth, autonomy and tolerance but would hurt a more general constitutional precept, according to which people are equal in dignity and, as such, must also be equal in respect. Even if free speech was not singular prerogative, the right to communicate ideas to others despite their content would work as an autonomous consequence of equality.
All are equal before the law, without distinction of any kind. With this traditional formula, many constitutions enunciate the principle of equality. The norm is a complex one. Its content is plural. However, there is a predominant meaning. The principle prevents the legislative power from making legal discrimination, that is, conferring some rights for some people and not conferring to others, or denying some rights for some and not refusing to others. Respecting human dignity is fulfilled, in principle, by the attribution of equal privileges and responsibilities to all.
The principle applies to every domain of human activity, profession, company, locomotion, contract, association, leisure, etc. If the statutory law demands higher education for a person to become a physician, this requirement should be extended to everyone, except for reasons that may justify different legal treatment (in this case, hard to imagine). There is no difference regarding speech. If men are equal in dignity and earn the same degree of respect, restricting only some ideas instead of others would mean that those who sustain them are less worthy.
Alexander Meiklejohn linked free speech and equality in a sounding equation: “No belief or advocacy may be denied freedom if, in the same situation, opposing beliefs and advocacies are granted freedom”. Implicitly criticizing the Supreme Court’s ruling in Schenck, and the persecution of the Communists after the Russian revolution and during the cold war, Meiklejohn settled his formula with these remarkable words: “If then, in any occasion in the Unites States, it is allowable to say that the Constitution is a good document, it is equally allowable, in that situation, to say that the Constitution is a bad document. If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified. If it be publicly argued that conscription for armed service is moral and necessary, it may be likewise publicly argued that it is immoral and unnecessary. If it may be said that American political institutions are superior to those of England or Russia or Germany, it may, with equal freedom, be said that those of England or Russia or Germany are superior to ours” 43 .
The principle of equality does not only prohibit the legislative power from denying some persons the right to profess specific ideas out of disagreement and contrariety while guaranteeing others the right to say the opposite. It binds all public powers. For the judiciary, equality takes the form of a duty to invalidate viewpoint discriminations established by statutory law and prevent people from being silenced, imprisoned and held accountable. When legislative power yield to inquisitorial pressures of majorities or influential organizations, the courts must stop the course of intolerance and guarantee the benefits of equality without distinction of ideas.
It is true that equality is not totally closed for legal differentiations. Sometimes, granting some people the rights denied to others is indispensable to compensate unfortunate situations and to balance opportunities. It might be said that it is the case when the law reserves a percentage of vacancies in public service to the disabled. Other times, the denial of rights granted to others is permissible based on the logical correlation between alegitimate objective and the factor of distinction. It is possibly the case when the law sets a minimum age for entry into the armed forces, where retirement takes place early, and youth and excellence of physical condition are requirements for doing a good job in the field for the most time possible.
Discriminating speech does not fit into either perspective. To promote equality in fact, government does not need to criminalize and suppress the thought it dislikes or diverges from. Ensuring that poor or black students have better opportunities in life does not depend on outlawing speech, but rather may be attempted through the adoption of affirmative programs such as support for the family and pregnant woman since prenatal care, breastfeeding control, free enrollment in kindergartens and school meals, permanent qualification of elementary education and, perhaps temporarily, granting scholarships and setting quotas in universities. It is not indispensable to silence and punish those who have non-egalitarians views of society.
10. SPEECH AND ACTION
Beyond democracy, truth, tolerance, autonomy and equality, there are at least two additional reasons for protecting speech. First, in general, speech contains lower degree of danger compared to actions ( i.e ., non-communicative actions, like driving or shooting), at least in the short run. So, there is no need to subject speech to the same rigid controls. Speech is the kind of human activity most compatible with full liberty. It is not by chance that most civil and criminal offenses concern to actions, not speech, as in the cases of physical assault, bank robbery, kidnapping, attempt to commit murder, speeding, drunk-driving and so on.
It is more dangerous firing a weapon toward an adversary than just announcing enmity feelings. It is more dangerous to regiment guerrillas and set fire to the government headquarters than presenting a lecture on the morality of the Marxism. Therefore, violent actions are usually more problematic than speech. Before actions, the time to react is slight, the chances of defense are reduced, brutality is often physical, material, and evils tend to be intense and, above all, immediate. Police response requires promptness and perhaps violence. There is no margin for tolerance. Criminal punishment must be strong enough to be exemplary. Here is a set of effects and demands that could hardly apply to something just said or written.
According to Edwin Baker , the shrill voice breaking a crystal cup is an aberrant example, and also something that does not even match with the usual notion of what speech means. The sound shattering the glass is, strictly speaking, pure physical force. Surely, speech is not always inoffensive. It is an exaggeration to say that “sticks and stones can break my bones, but names will never hurt me”. However, in most cases, thesis a suitable metaphor.
The lesser capacity to produce immediate and irreversible effects is not a final reason for protecting speech. Yet, it helps to justify the difference between actions and speech regarding to the respective legal treatment. Actions are significantly repressed while speech is significantly protected. Once the potential to injure is lower, punitive interventions are less needed. Tolerance is possible, and, in principle, bad ideas can be counteracted with good ideas. There is time to react through debate and instruction without resorting to relentless methods of force.
Using force to counter bad ideas is not just pointless, but also something misplaced. Bad actions often violate the rights of others. In a theft, for instance, there is a violation of property right; in a homicide, of the right to life; and in default, of the right to receive the payment in the due date. Conduct reprehensibility stems precisely from damage to the protected legal good. Exceptionally, when the action is committed by a person with a mental health condition, is imposed as a means of defense or is associated with a fortuitous event, the illicitness disappears because there is no connection between a reprehensible conduct and the injurious result.
Something different happens with speech, especially having in mind the assertive type 45 , that is, statements of facts and values that the speaker sincerely believes to be true or correct and intends to be taken as such by the listeners. Even when the content is shocking, asserting something never implies violation of anyone’s right, but rather it means the use of one’s own right to assert it. As to other kinds of speech acts, such as the directive (orders, requests, advices, etc.) and the commissive (promises, oaths, etc.), the same thing generally occurs, although not always.
Having a right is to be able to demand something from someone (an object, an action, an omission, etc.); having a right violated means that someone didn’t do what was demandable. But if John thinks and says, hypothetically, that it is morally justifiable to fight the bourgeois society, or if John feels and says he hates Jews for having killed Jesus Christ, John won’t be violating anyone’s right simply because no one has the right to demand from him to think or to feel otherwise. His opinions and his emotions may be bad, but they do not cause an illegal harm to anybody. On the contrary: it is John’s own right to express what he believes and feels. If John believes and says that only 50,000 Jews died during the holocaust or if John joins a demonstration in favor of abortion legalization, again John won’t damage anyone’s right because no one has the right to demand from him to believe in another version of history or to embrace another political cause. The version can be fragile and ridiculous, and the agenda may seem immoral and impious; however, they are not illicit.
Therefore, speech differ from actions because it tends to be less unsafe and not to violate rights. It is neither needed nor proper to subject both to the same inflexible canons. There is a fine-tuning between the nature of speech and the possibility of freedom. The antidote to evil thinking should not be the speaker’s enforced silence or penalty, but the counter-coupling of freedom itself. As Louis Brandeis once wisely said: “ the fitting remedy for evil counsels is good ones ” 46 .
It must be said, on the other hand, that speech loses value when it implicates deliberate and detrimental consequences to other’s man rights. That’s what happens when we are before communications like the false cry of fire in a theater causing panic in the crowd, among many others sorts of wrongdoings made with words , such as an intentional false report of a crime, agreements to commit a murder, bullying, harassment, slander, threats to get sexual intercourse, encouragement of suicide, etc. Here, as earlier noted, there is more action than speech. It’s in fact the case of do In g evil things to someone by saying , not of only saying something evil 47 , and it is expected that protect ed rights will be violated, such as the right everyone has of not being falsely reported as a criminal or terrified to make unwanted sex.
In hate speech cases, by the way, it is critical to distinguish. One thing is to state, assertively, for instance, that “life was better when blacks and whites were separated”. No one has the right to demand a different view, and free speech values apply. But there are some quite different scenarios. The first is hateful incitement: when someone directly asks the listeners to take illegal, imminent and harmful actions against a person or a group based on prejudices of race, religion, origin, gender or sexual orientation. The second is hateful threat: when someone threatens to take illegal and harmful actions against a person or a group with the intent to cause fear and terror on the same basis. The third is hateful insult: when someone, mostly in a face-to-face encounter, utters racist epithets against a person with the only purpose of wounding, humiliating or provoking a fight. Again, these are cases of do In g evil th In gs to someone by say In g (inciting, threatening and humiliating or provoking a fight), not of only say In g someth In g evil . Accordingly, rights will be certainly hurt, and free speech values are hardly reachable.
11. CONCLUSION: AN ENLIGHTENING CASE
Considering all things together, the common understanding is that government is forbidden to repress speech on a content basis. Content-based limitations are mainly those which prohibit and punish speech because of the supposed untruth or wrongness of the message. What generally happens in this case is that the government disbelieves what the speaker believes, that is, the government does not accept as true the proposition that the speaker takes as so.
There is an enlightening case. In 1959, the US Supreme Court faced an episode regarding a forbidden film. It was Lady Chatterley’s Lover , a movie adaptation of D. H. Lawrence’s novel. The story is about Constance, a young woman whose husband Clifford Chatterley becomes paralyzed and sexually incapacitated. Constance lives the frustration of a conjugal relationship in which soul and body conflict. Married to an impotent aristocrat, she gets involved with an employee and commits adultery. The ardent moments of lovers’ intimacy are the plot highlights.
New York State law conditioned cinematographic exhibits to prior permission of its education department. Under the original wording, the law provided that the license should not be granted if the movie, in whole or in part, was obscene, indecent, immoral, inhuman, sacrilegious or was of such a nature that its display tended to corrupt the moral or incite crime. An amendment was later added to clarify what the word immoral and the sentence tended to corrupt the moral meant. According to the amendment, a movie would be immoral and susceptible to corrupt morality when its dominant purpose or effect was erotic or pornographic; or when exposing acts of sexual immorality, perversion or lust, or when expressly or implicitly presenting such actions as desirable, acceptable or appropriate standards of behavior.
Lady Chatterley’s Lover distributor submitted the tape to the responsible division. The license was denied. The movie could only be shown if three scenes considered immoral were deleted. It did not take care of mere restriction of children and teens access. It was a total prohibition even for the adult audience. There was an appeal to another administrative instance, but it was unsuccessful. Even worse: the denial was kept but on a broader basis. The problem was not the three separate scenes, but the whole movie was immoral under the law because presented adultery as desirable, acceptable, and appropriate. The case came to courts. The Court of Appeals in the State of New York was divided and reformed a lower court decision that favored the distributor and backed the administrative refusal of the license. According to the prevailing opinion, the prohibition suited the legislation purpose because the movie’s matter was adultery presented as right and desirable for certain people under certain circumstances. Thus, the litigation reached the Supreme Court.
The case was decided in favor of the producers thanks to the content-based motivations behind the ban. The license was denied on the sole ground of being immoral the condescending exposure of an adulterous relationship. The reason was not that the movie incited adultery. An argument like this probably would not work in the face of the American constitutional legal doctrine at the time. In Whitney v. California , the Supreme Court had previously suggested that abstract advocacy of illegal conducts does not constitute incitement. Incitement is something like a speech intentionally intended to lead the audience to an unlawful activity that is likely to occur immediately. Lady Chatterley’s Lover’s ban was based only on the supposed immorality of the adultery justification. According to authorities, the movie presented adultery as desirable, acceptable, and appropriate for certain people under certain circumstances, and that was immoral. This is a fair illustration of content-based censorship and viewpoint discrimination. One could believe and speak bad things about adultery, but not good ones.
Justice Potter Stewart wrote the Supreme Court’s opinion. He wrote initially: “What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea - that adultery under certain circumstances may be proper behavior.” He further added: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry.” Then, he concluded: “This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper behavior, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing” 48 .A short ruling that corroborates the principle of neutrality: government may not censor speech just because its agents do not like or diverge from it, whether they are legislators, administrators or judges.
Potter Stewart could have argued that Lady Chatterley’s Lover is a fiction work, and it does not necessarily contain a value judgment on adultery, that it is just a narrative, a description of some possible human experience. He could have questioned the conclusion that the story meant to support lovers’ conduct. However, if Potter Stewart moved in that direction, he would not face the critical question under examination, whether the government is entitled to forbid an opinion just because it is contrary and discordant to the one it prefers, the only one that is deemed compatible with the desirable moral. Potter Stewart examined the case validating the assumption that Lady Chatterley’s Lover did indeed contain a supportive message about adultery. Doing so, the US Supreme Court protected the opinion despite its content.
Somebody who asserts that adultery is sometimes acceptable holds a point of view, a moral opinion on human behavior. He or she states a point that may influence marriage legislation. He or she takes a side before a question that does not have a unique, and inescapable answer. He or she speaks his/her mind, maybe opening a contest that, locked in the ring of ideas, educates for civilized coexistence. Lady Chatterley’s Lover ’s proscription infringed the right to say no matter what without fearing censorship or punishment and contradicted the cardinal values by which free speech is rightly guarded: democracy, truth, autonomy, tolerance, and equality.
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Essay on Freedom of Speech for Children and Students
Table of Contents
Essay on Freedom of Speech: Freedom of speech is one of the fundamental rights of the citizens of India. Many countries around the world allow freedom of speech to its citizens to empower them to share their thoughts and views.
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The government of India and many other countries provide freedom of speech to their citizens. This is especially so in the countries with democratic government. Here are essays of varying lengths on the topic Freedom of Speech to help you with the same in your exam. You can select any Freedom of Speech essay as per your need:
Long and Short Essay on Freedom of Speech in English
We have provided below short and long essay on freedom of speech in English. These essay have been written in simple English to let you easily remember the main points and present them whenever required.
These freedom of speech essay will brief you about the right to freedom of speech under the Constitution and what is its significance.
You can use these freedom of speech essays in your school’s/college’s essay writing, speech or debate competitions. You can also use these essays while having normal discussions with your family and friends.
Freedom of Speech Essay 1 (200 words)
Freedom of Speech is one of the fundamental rights provided to the citizens of India. It allows the citizens of our country to express their ideas and share their opinions freely. It allows the general public as well as the media to comment on any of the political activities and even show discontentment against the ones they find inappropriate.
Just like India many other countries also provide the Freedom of Speech and Expression to its citizens but with some limitations. The restrictions put on the Freedom of Speech vary from country to country. There are also many countries that do not allow this basic human right. The general public and the media in such countries are refrained from commenting on the activities carried out by the government. Criticism of government, political parties or ministers is a punishable offense in such countries.
While Freedom of Speech is essential for the overall growth of the society it may have certain negative repercussions too. People must not use it to disrespect or instigate others. The media must also act responsibly and not misuse the Freedom of Speech.
I am lucky to have born in India – a country that respects its citizens and provides them with all the rights that are needed for their growth and development.
Freedom of Speech Essay 2 (300 words)
Freedom of speech is one of the basic rights given to the citizens of most of the countries across the globe. It enables the people residing in those countries to speak their mind without the fear of being punished by the law.
Origin of Freedom of Speech
The concept of freedom of speech originated long back. England’s Bill of Rights 1689 adopted freedom of speech as a constitutional right and it is still in effect. The French revolution in 1789 adopted the Declaration of Rights of Man and of the Citizen. This further affirmed the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech and Expression in Article 11 states:
“The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”.
The Universal Declaration of Human Rights that was adopted in the year 1948 also states that everyone should have the freedom to express their ideas and opinions. Freedom of Speech and Expression has now formed a part of the international and regional human rights law.
Freedom of Speech – The Basis of Democracy
A democratic government gives various rights to its people including the right to elect the government of their country. Freedom of speech and expression is known to form the basis of a democratic nation. Merely electing the government is no use if the citizens do not have the right to voice their opinion in case they feel that the elected government is not performing as per the standards set by it initially. This is why right to freedom of speech is an essential right in the democratic nations. It forms the basis of democracy.
Freedom of speech empowers the people to share their ideas and bring about positive changes in the society.
Freedom of Speech Essay 3 (400 words)
Freedom of Speech is considered to be a basic right that every person must be entitled to. It is among the seven fundamental rights given to the citizens of India by the Indian constitution. It forms a part of the Right to Freedom that includes the freedom of speech and expression, right to life and liberty, freedom of movement, freedom of residence, right to practice any profession, freedom to form unions, associations or cooperatives, protection in regard to conviction in offences and protection against arrest in some cases.
Why is Freedom of Speech Essential?
Freedom of speech is essential for the all round growth and development of a person as well as a nation as a whole. Imposing restriction on what one speaks or hears can hamper the development of a person. It can even create discomfort and dissatisfaction that leads to stress. A nation filled with people full of discontent can never grow in the right direction.
Freedom of Speech gives way to open discussions that helps in exchange of ideas which is essential for the growth of the society. It is also essential to express one’s opinion about the political system of the country. When the government knows that it monitored and can be challenged or criticized for the steps it is taking, it acts more responsibly.
Freedom of Speech – Closely Related to Other Rights
Freedom of Speech is closely related to the other rights. It is mainly required to protect the other rights given to the citizens.Freedom of Speech is only when people have the right to express and speak freely they can raise their voice against anything that goes wrong. It enables them to take an active part in democracy rather than just being involved in the election process. Similarly, they can guard other rights such as the Right to Equality, Right to Freedom of Religion, Right against Exploitation and Right to Privacy only when they have the Freedom to Speech and Expression.
It is also closely related to the Right to Fair Trial. Freedom of Speech and Expression enables a person to put across his point freely during a trial which is extremely essential.
Freedom of speech gives the power to raise voice against any kind of injustice happening around. The governments of the countries that offer Right to Information and Opinion and Freedom of Speech and Expression must also welcome the opinions and ideas of their citizens and be receptive to change.
Freedom of Speech Essay 4 (500 words)
Freedom of Speech and Expression is one of the basic rights guaranteed to the citizens of India. It comes under the Right to Freedom which is among the seven fundamental rights included in the Indian constitution. The other rights include Right to Equality, Right to Freedom of Religion, Cultural and Educational Rights, Right to Privacy, Right against Exploitation and Right to Constitutional Remedies.
Freedom of Speech in India
The constitution of India provides Freedom of Speech to every citizen however with some restrictions. This means that the people can freely express their views about others as well as the government, political system, policies and bureaucracy. However, speech can restricted on moral grounds, security and provocation. Under the Right to Freedom in the Indian constitution, the citizens of the country have the following rights:
- Freedom to speak and express ideas and opinions freely
- to assemble peacefully without any arms and ammunitions
- Freedom to form groups, unions and associations
- to move freely in any part of the country
- Freedom to settle in any part of the country
- to practice any profession
- Freedom to indulge in any kind of business or trade provided it is not unlawful.
India known as a democratic country in true sense. The people here have the right to information and can give their opinion on anything even the activities of the government. Freedom of Speech empowers the media to share all that is going on in the country as well as around the world. This makes the people more aware and also keeps them updated with the latest happenings from around the world.
Downside of Freedom of Speech
While the Freedom of Speech allows an individual to share his thoughts and ideas and contribute towards the betterment of his society and fellow citizens, there many disadvantages attached to it too. Many people misuse this freedom. They do not just express their views but also impose them on others. They instigate people and form groups to conduct unlawful activities. Media is also free to express its ideas and opinions. At times, the information shared by them creates panic amongst the general public. Certain news such as that related to the activities of different communal groups has even given rise to communal riots in the past. This disrupts the peace and harmony of the society.
Internet has augmented the Freedom of Speech and Expression. The advent of social media platforms has furthered it all the more. People these days are eager to give their views on anything and everything whether they have knowledge about the same or not. They write hateful comments without caring if they are hurting someone’s feelings or intruding in someone’s personal space. This can certainly termed as the misuse of this freedom and must stopped.
Every country must provide the Freedom of Speech and Expression to its citizens. However, it must defined clearly so that it only helps in bringing about positive changes in the individuals as well as the society and does not disrupt its normal functioning.
Freedom of Speech Essay 5 (600 words)
Freedom of Speech given to citizens of most countries to enable them to share their ideas and provide their opinion on different matters. It considered to be essential for the growth of an individual as well as the society. While most countries provide this freedom to its citizens, many refrain from it.
Many Countries Offer Freedom of Speech
Not only India many countries around the world offer Freedom of Speech and Expression to their citizens. The United Nations Universal Declaration of Human Rights incorporated in the year 1948 states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
South Africa, Sudan, Pakistan, Tunisia, Hong Kong, Iran, Israel, Malaysia, Japan, Philippines, South Korea, Saudi Arabia, United Arab Emirates, Thailand, New Zealand, Europe, Denmark, Finland and Republic of China are among some of the countries that offer Freedom of Speech and Expression to their citizens.
Now, while these countries have given the Right to Freedom of Speech and Expression to their citizens however the degree to which this right rendered to the general public and media differs from country to country.
Countries that Do Not Have Freedom of Speech
There are countries that do not give the right to Freedom of Speech to their citizens to maintain absolute control. Here is a look at some of these countries:
- North Korea :
The country does not provide Freedom of Speech and Expression to its citizens as well as the media. Thus, the government does not only hold the freedom to express ones ideas and opinions but also holds information from its citizens.
The government of Syria known for its tyranny. People here deprived of their basic human right that is the right to Freedom of Speech and Expression.
Yet another country that doesn’t provide Freedom of Speech to its citizens. The citizens of Cuba not allowed to pass any negative comment on the activities of the government or any political party. The government here has even put restriction on internet usage so that people do not get a chance to express anything via the same.
This is another country that does not offer Freedom of Speech and Expression. People cannot voice their opinions or criticize the work of the government. Criticism of the government or any political minister is a criminal offense here.
The citizens of Iran are not aware what it is like to express their opinion and share their ideas freely in the public. Nobody can express any kind of discontentment against the public laws or Islamic standards.
The government of Burma is of the opinion that the Freedom of Speech and Expression is unnecessary. The citizens asked not to express their ideas or opinions particularly if they are against any leader or political party. The media in this country run by the government.
Most people in this country do not even know as to what Freedom of Speech and Expression really is. The government of Libya known for oppressing its citizens. In the age of internet, people around the world are free to express their views on any matter but not in this country. Many people in the country have arrested for criticizing the government on the internet.
Freedom of Speech and Expression is a basic human right that must given to the citizens of each country. However it is sad to see the way the governments of certain countries do not provide even this essential human right to its citizens and oppresses them to fulfil their own selfish motives.
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Freedom of Speech Essay
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Writing help, paraphrasing tool, freedom of speech - essay examples and topic ideas for free.
Freedom of speech is a principle that supports the freedom of an individual or community to articulate their opinions without fear of retaliation, censorship, or legal sanction. Essays could explore the various interpretations of freedom of speech, its limitations, and its impact on democracy and societal harmony. A vast selection of complimentary essay illustrations pertaining to Freedom Of Speech you can find at Papersowl. You can use our samples for inspiration to write your own essay, research paper, or just to explore a new topic for yourself.
Freedom of Speech and Censorship
The government needs to also look at the First amendment that gives Americans the freedom of speech. Although freedom of speech gave the Americans an opportunity to express themselves, it came with some disadvantages. Some individuals used this freedom to propagate hatred especially racism. Individuals who had something against the blacks would use the freedom of expression clause to protect themselves before making hateful remarks. They would propagate hate between the African Americans and the whites. Some leaders were known […]
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Literature has always been tricky. At times, people find certain books to be offensive or inappropriate. People will even go to great lengths to challenge or ban books just because of differing opinions. Limiting free speech has been a constant and continuous argument throughout history. One side argues that certain pieces of writing should be banned or censored due to words, content and themes that are either viewed as inappropriate, controversial or contain language that is no longer acceptable. Violence, […]
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Americans value the First Amendment as much as a teenage girl values her cell phone. Life just wouldn't be the same without it. Thanks to the authors of the Constitution America has established the fundamental laws, government, and basic rights for American citizens. The document was signed on September 17, 1787, in Philadelphia. Later, Madison introduced 19 amendments, 12 of which were adopted. Ten of them were ratified and became the Bill of Rights on December 10, 1791. The First […]
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Social media and freedom of speech have taken over the world. People read on the news every day about people being punished for what they post on social media. To what limit should people be punished for what they post? When people post online, everyone can see the material. It does not matter if the account is private. People should face consequences for their actions on social media if their post is offensive, containing work information, or includes a provocative […]
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Freedom of Speech Taken from People Many people around the world are forced to live without a voice for themselves. These people live in constant fear of the consequences they may face if they do voice their opinions. This lack of a voice goes against the inalienable right that is known as freedom of speech, which is defined as “the legal right to express one’s opinion freely” (Merriam-Webster, 2020). These restrictions of free speech can be countered through the use […]
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What Freedom Means to me
There are millions of people around the world that live under conditions where the government withholds their human freedoms from them. Some people can not practice the religion they truly believe in, and others are scared for their lives on a daily basis. No matter how many restrictions citizens of different countries must abide by, nobody should be forced into silence. To “be free” means that everybody has the right to raise up their voice, and act for what they […]
Justice Freedom of Speech
With the popularity of the Internet, the network media has broken the limitation of the traditional media in the freedom of speech, and people can enjoy expressing opinions and spreading information. The infinity of the Internet brings many benefits to people, such as searching for information and watching videos. At the same time, the virtual nature of the network also brings hidden dangers for people, such as spreading false information, human flesh search, and so on. One of the reasons […]
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In this paper each author reflects their own moral opinion on hate speech shared with freedom of speech and the results from it containing negative content. There are several authors who discuss hate speech in considerations of freedom of speech. Despite strong objections I trust that society is obligated to protect its citizens and prevent any harm done in relation to hate speech under freedom of speech law. First, In “Freedom of Speech” David van Mill argues freedom of speech […]
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Hate Speech Debate and Discussion
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1000-Word Philosophy: An Introductory Anthology
Philosophy, One Thousand Words at a Time
Author: Mark Satta Category: Social and Political Philosophy , Philosophy of Law , Ethics Word Count: 989
Want to criticize your government? Burn a flag? Wear a t-shirt that says f**k the draft?
Thanks to freedom of speech , in many places you can. 
But what exactly is freedom of speech? And what does it permit us to say? This essay will review some influential answers to these questions.
1. Protection from Government, Not Private Actors
Freedom of speech, sometimes called freedom of expression , is a legal right to express many beliefs and ideas without government interference or punishment. This freedom does not typically prevent private entities (e.g., ordinary citizens or private organizations) from limiting speech. 
If freedom of speech prevented private entities from limiting speech, freedom of speech could not be applied consistently because the freedom of speech includes the ability not to speak.  So, e.g., if a newspaper was forced to publish every piece of writing submitted to it, then that newspaper would lose some ability to not speak. Freedom of speech also includes the right not to listen to or receive other people’s messages. 
The fact that freedom of speech only prevents government interference doesn’t entail that freedom of speech is irrelevant to action by private entities. Some argue that certain private entities ought to voluntarily conform to legal standards for speech protection: e.g., that private universities should conform to the free speech standards legally required by public universities.  Freedom of speech is also sometimes understood more broadly as a social value.
2. Limits on Free Speech
Freedom of speech is not an unlimited right. All governments impose some limits on what kinds of speech they will protect. This is because freedom of speech, like all rights, must be balanced against other rights and values.
Common types of speech not protected by freedom of speech include threats of violence, false advertising, and defamation (i.e., false statements that unjustly harm someone’s reputation). 
Many democratic nations do not protect hate speech (i.e., speech intended to threaten, degrade, or incite hatred against a group or group member based on group prejudice). But some other nations, including the United States, treat hate speech as protected speech. Whether hate speech should receive free speech protection has been much debated in recent years. 
But even protected speech can be limited to an extent by the government: e.g., freedom of speech does not permit just anyone to enter a military base or a class at a public university and start talking. This is true because, even though military bases and public universities are government-run, these spaces seek to achieve other important goals that justify limiting free speech.
Freedom of speech gives you much greater latitude in a public park, a public sidewalk, or in your own home. But even in public places like parks and sidewalks, freedom of speech allows for content-neutral restrictions on speech: e.g., a town can have a noise ordinance banning playing loud music in parks near residential neighborhoods after midnight.
But it is important that these restrictions be content- and viewpoint-neutral .  Thus, a town could not pass an ordinance limiting speech only about certain topics or from certain perspectives in the park. Such a rule would discriminate based on the content or viewpoint of the speech. An important part of freedom of speech is that the government cannot restrict speech just because it doesn’t like the topics or agree with the speaker. Freedom of speech also doesn’t allow for the suppression of ideas simply because those ideas are unpopular.
3. Expressive Conduct
Freedom of speech protects more than just spoken and written expression. It also protects many other activities through which ideas can be expressed:  e.g., in the United States, abstract art, non-lyrical music, and marching in a parade are all activities protected under the freedom of speech. 
There are controversies concerning which activities ought to be considered expressive conduct: e.g., there is substantial disagreement about whether political spending by corporations ought to be protected as free speech.  There are also disagreements about if and when the creation of products like wedding cakes and photographs ought to be considered protected speech. 
4. Prior Restraint versus Subsequent Punishment
Freedom of speech protects people against two different types of government interference: prior restraint and subsequent punishment .
A prior restraint prevents you from speaking: it restrains your speech prior to it being made. At one point, many legal scholars thought that freedom of speech meant only freedom from prior restraint.  That is no longer true.
Today, most everyone believes that freedom of speech protects people not only from prior restraint, but also from subsequent punishment (i.e., from being legally sanctioned for protected speech). This makes freedom of speech more robust because it protects people not only from having their protected speech restrained, but also from having their protected speech punished by the government.
5. Why is Free Speech Important?
Philosophers and legal scholars have given many different explanations for why free speech is important. Many scholars think there are multiple good reasons why we protect free speech. 
Three common rationales for free speech protections are that they help us (1) discover truth, (2) respect human autonomy, and (3) preserve democracy by allowing criticism of government.
Influential advocates of the idea that free speech helps us discover truth include writer John Milton, philosopher John Stuart Mill, and U.S. Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis. 
One common form of the truth discovery argument is that the best way to overcome false speech is with more speech.  Given what we know about how viral misinformation works, such a claim can appear implausible.  But even if this version of the truth discovery argument is mistaken, there may be weaker forms of a truth-preservation principle that provide us with good reason to safeguard free speech: e.g., someone might argue that the fallibility of political leaders requires them to avoid suppressing others’ ideas.
Freedom of speech is valuable. Protecting it first requires understanding it.
 See, e.g., Brandenburg v. Ohio , Texas v. Johnson , and Cohen v. California .
 See, e.g., U.S. Const. Amend I .
 Gaebler 1982 .
 Corbin 2009 .
 Chemerinsky and Gillman 2017 .
 Maras 2015 , Redish and Voils 2017 , and Post 1986 .
 See, e.g., Waldron 2012 and Strossen 2018 .
 Jacobs 2003 .
 Tushnet, Chen, and Blocher 2017 .
 See, e.g., Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston .
 Hasen 2011 .
 Liptak 2017 .
 Rabban 1981 , Healy 2013 .
 Greenawalt 1989 .
 Milton 1644 (reprinted 1918) , Mill 1859 , Abrams v. United States (Holmes, J. dissenting ), Whitney v. California (Brandeis, J. concurring) .
 See, e.g., Milton 1644 (reprinted 1918) , Whitney v. California (Brandeis, J. concurring) .
 Wu 2018 .
Abrams v. the United States , 250 U.S. 616 (1919).
Brandenburg v. Ohio , 395 U.S. 444 (1969).
Cohen v. California , 403 U.S. 15 (1971).
Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston , 515 U.S. 557 (1995).
Texas v. Johnson , 491 U.S. 397 (1989).
Whitney v. California , 274 U.S. 357 (1927).
Corbin, Caroline Mala. 2009. “The First Amendment right against compelled listening.” Boston University Law Review , 89 (3): 939-1016.
Chemerinsky, Erwin and Howard Gillman. 2017. Free Speech on Campus . Yale University Press.
Gaebler, David. 1982. “First Amendment Protection Against Government Compelled Expression and Association.” Boston College Law Review , 23 (4): 995-1023.
Greenawalt, Kent. 1989. “Free Speech Justifications.” Columbia Law Review 89 (1): 119-155.
Hasen, Richard L. 2011. “Citizens United and the Illusion of Coherence.” Michigan Law Review , 109 (4): 581-623.
Healy, Thomas. 2013. The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America . Metropolitan Books.
Jacobs, Leslie Gielow. 2003. “Clarifying the Content-Based/Content Neutral and Content/Viewpoint Determinations.” McGeorge Law Review , 34 (3): 595-635 .
Liptak, Adam. 2017. “Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers.” New York Times .
Maras, Marie-Helen. 2015. “Unprotected Speech Communicated via Social Media: What Amounts to a True Threat?” Journal of Internet Law , 19 (3): 3-9.
Mill, John Stuart. 1859. On Liberty . John W. Parker & Son.
Milton, John. 1918. Areopagitica . Cambridge University Press.
Post, Robert C. 1986. “The Social Foundations of Defamation Law: Reputation and the Constitution” California Law Review , 74: 691-742.
Rabban, David M. 1981. “The First Amendment in Its Forgotten Years.” Yale Law Journal , 90 (3): 514-595.
Redish, Martin H. and Kyle Voils. 2017. “False Commercial Speech and the First Amendment: Understanding the Implications of the Equivalency Principle.” William & Mary Bill of Rights Journal , 25: 765-799.
Strossen, Nadine. 2018. Hate: Why We Should Resist it With Free Speech, Not Censorship . Oxford University Press.
Tushnet, Mark V., Alan K. Chen, and Joseph Blocher. 2017. Free Speech Beyond Words: The Surprising Reach of the First Amendment . New York University Press.
Waldron, Jeremy. 2012. The Harm in Hate Speech . Harvard University Press.
Wu, Tim. 2018. “Is the First Amendment Obsolete?” Michigan Law Review , 117 (3): 547-581.
For Further Reading
“Freedom of Expression – Speech and Press.” Cornell Law School’s Legal Information Institute.
van Mill, David, “Freedom of Speech”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.)
Philosophy of Law: An Overview by Mark Satta
Theories of Punishment by Travis Joseph Rodgers
Hannah Arendt’s Political Thought by David Antonini
John Rawls’ ‘A Theory of Justice’ by Ben Davies
Download this essay in PDF.
About the Author
Mark Satta is an Assistant Professor of Philosophy at Wayne State University in Detroit, Michigan. He received his PhD in Philosophy from Purdue University and his JD from Harvard Law School. Some of his philosophical research interests include philosophy of law, epistemology, bioethics, and philosophy of language. MarkSatta.com
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