Freedom of speech

It's the Law

To punish and protect

Chilling effect Terri Schiavo case Vashti McCollum Johnson Amendment Schenck v. United States National Security Act Stop and Frisk Natural law Cui bono Trump-Ukraine scandal Illegal schools in the United Kingdom Fallacy of ambiguity v - t - e

Freedom of speech is the right to communicate with any other person, or persons, without fear of unwarranted restriction, censorship, or organized reprisal. Under most Western legal systems, any government intervention or restriction on communication must be specific and have a defined purpose beyond simple censorship. It is a concept integral to liberal democracies, and indeed Western civilization. The restriction of this right is characteristic of totalitarian regimes.

The ability to freely speak your mind is widely seen as a natural right; that is, a government (or any other institution) can't grant you this right, only take it away. Still, the protection of this right is codified in many legal documents. It is guaranteed under Article 19 of the Universal Declaration of Human Rights and in the First Amendment to the United States Constitution (part of the Bill of Rights). These laws prevent governments from infringing on your freedom of speech. In themselves, they do not mean that any other institution has to protect your freedom of speech and, as such, do not mean that a private business cannot tell employees what they may or may not say, that a public club cannot impose some restrictions on types of speech at their center, or that a privately owned Internet forum may not moderate messages for content or viewpoint. However, since corporations and similar entities control a lot of online territory while being beholden to sponsors, sensitive to their bottom line, and subject to boycotts and other campaigns by pressure groups, legal protections that bind only governments are increasingly irrelevant to the protection of freedom of speech.^[4]

History and philosophy: the American tradition[edit]

In the United States of America, the concept of "freedom of speech" is deeply rooted in the national consciousness and not easily assailed. Built on a series of legal doctrines developed by the courts, the central purpose of the liberty is the protection of political speech, above all else. Commercial speech is subject to some lesser protection, but literary speech is generally considered to merit the same protections as political speech (much of that material is political, explicitly or indirectly). However, when speech constitutes incitement to "imminent lawless action", it may be prohibited and prosecuted. Moreover, defamation of living individuals may be cause for a civil lawsuit and, in the very rare instance of reputational homicide, even criminal prosecution in a dwindling few states. Public figures, however, are less able to recover for defamation, as the threshold is much higher and extremely difficult to meet.^[5]

Necessarily, restraints must be "read into" the Amendment. Therefore, speech may be restricted as to "time, place, and manner". After all, no matter what "pressing cause" some asshole wants to communicate to you, she should not do it while driving through your neighborhood at 3 a.m. with a bullhorn.

Seditious advocacy[edit]

Seditious advocacy is the support of policies antithetical to the government, or the speech act of hindering a government project. For example, protesting outside an army recruiting station is seditious advocacy: it undermines the government's efforts to recruit and fight a war. Similarly, wiring the Pentagon's top secrets to Osama bin Laden would surely constitute seditious advocacy. However, the former speech is protected political speech while the latter would likely violate constitutional protections of classified information. (Bonafide national security purposes permit a prohibition of even politically motivated speech, but even those exceptions must be narrowly tailored.)

Seditious advocacy was historically unprotected speech in British law; however, the Founders' generation fought vigorously on this issue.^[6] In the 20th century, the following formulation emerged: unless speech threatens to incite "imminent lawless action", the speech act is protected.^[7] Furthermore, the speaker encouraging lawlessness must have "specific intent" to "expressly incite" lawlessness; he must not merely be arguing in favor of lawlessness as an abstract idea.^{[note 1]} Supporting the concept of the violent overthrow of the United States is protected; inciting an angry mob to lynch army recruiters is not.

Obscenity and profanity[edit]

Traditionally, the government held power to prohibit the obscene and the profane. As recently as 1800, it was considered acceptable for the state to punish blasphemy. Needless to say, things have changed a lot. The US has moved from "I know it when I see it", to merely bleeping "the seven words you can't say on the radio" from on-air broadcasts and basic cable. If one pays for premium cable channels, those soul-corruptingly dirty words — as frequently heard on any middle school playground — will be accessible even to the foolhardy adult.

Content-neutral restrictions[edit]

The "content-neutral" doctrine stands for the principle that the government can regulate speech, within reason, so long as it does not take a side in an intellectual debate — that is, so long as it does not take a position as to content. Thus, American governments traditionally enjoy wide discretion to regulate the "time, place, or manner" of speech.

The rule of the public forum is an outgrowth of "content-neutral" doctrine: under this rule, the government is generally powerless to regulate speech in traditional public fora such as streets and parks, since these areas are property held in the public trust for political use.^[8] However, the public forum rule has important qualifying rules:

• In a "limited designated forum" — that is, government property opened to public use for a particular purpose only — subject matter regulations are appropriate. Thus, a city may forbid obscene speech or advertisements in publicly owned transportation vehicles, such as streetcars.^[9]
• Similarly, public school facilities opened to the public as after-school meeting places are limited-designated fora.^[10] Thus, subject-matter regulation is appropriate in administering public school space requests. However, discriminating against religious speech, while seemingly a subject-matter regulation, is apparently a viewpoint regulation and therefore forbidden; thus, public schools cannot exclude religious groups from using their facilities after school.^[11] If that sounds absurd, it's because it is.

At the extremes, though, the general acceptance of "content-neutral" regulation can become the exception that swallows the rule. During the George W. Bush presidency, a popular "time/place/manner" restriction, especially used to regulate protesters during Republican rallies, was the confinement of protesters to "free speech zones" isolated geographically from the site of the event being protested. While this is, technically, a place and manner regulation, the function of the rule is to eviscerate the right to speech: government power to reasonably regulate speech cannot be allowed to confine speech to the corner of the world where it is least effective, after all.

Incidental effects issues[edit]

As a general rule, when an act is proscribed by a law for general application, its prohibition cannot be challenged because of the incidental effects of the law on speech activities. This is to say that you can't shoot someone, then claim it's "free speech": if laws against murder incidentally burden free speech rights, the effect is outweighed by the necessity of the rule of general application.

The rule that comes from United States v. O'Brien, on this matter, is that where the government's interest in a law of general application is unrelated to the suppression of speech, the general law cannot be challenged because it chills speech. Thus, a law banning flag burning as desecration would be unconstitutional; however, a law banning outdoor fires, and incidentally touching upon flag burning, would be constitutional.

Limits on freedom of speech[edit]

The general public's understanding of the protections of free speech afforded in the United States by the Constitution is generally broader than the protections actually are. Conservatives are known for defending their pundits by stating that "it's a free country" — pundits can say what they want without being "censored" for their beliefs.^[12] Ditto, supposedly scientists being paid to produce science can defend their poor science on the grounds that "it's a free country", and they can say what they want to say.^[13] Technically, yes. The right to free speech is guaranteed by the Constitution, but it is guaranteed vis a vis the government — not necessarily vis a vis private individuals. While individuals have a high level of protection of their speech against government censorship, these high levels are triggered only by state action — that is, the government's actual use of power. On the contrary, just as in discrimination law, lower levels of protection attend non-state-based limitations on speech. While the Constitution prevents the government from punishing you for your speech (generally unless such speech has as its purpose "imminent lawless action"^[14]), the Constitution also cannot protect you from a private organization censoring your speech by taking some private, non-state action against you.^{[note 2]} In fact, the First Amendment has been held to protect the freedom not to promote views other than one's own.^[15] According to the government, you do not have access to complete free speech if you're in the military or speaking under oath. However, hate speech is protected, as has been shown in several court hearings.

So while it's a free country, and pundits may be pundits and say what they will, they need not be surprised, and may not claim the First Amendment as protection, when they are fired for making ridiculous statements. One must also note, too, that the assertion to the contrary by conservative networks only triggers when one of their own gets in trouble; when someone else starts to say something controversial, all of a sudden, they seem to back down.^{[16][note 3]}

Lying[edit]

It actually depends on how, when, and where one lies, but lying can be illegal if your words hurt either individuals (e.g., through fraud) or society at large. This could include (falsely) "yelling 'fire' in a crowded theater" (or pulling the fire alarm in said theater as an artistic stunt), some hoaxes, selling miracle pills as a cure for diseases without testing to make sure the claims are legit or telling customers what's in them, or telling investors in your company that you can double their money in under a month as long as they keep recruiting more investors. Writing false information on government forms is not protected free speech. Lying in an attempt to deceive the justice system could be either obstruction of justice (if you do it to the police) or perjury (if you do it under oath in court). Committing any of these forms of "free speech" could result in serious civil or criminal penalties. Slander or libel can also cause you to be sued.

Comparative limits on other topics[edit]

The limits of free speech depend on the values and leaders of a society. Most nations have copyright and patent laws preventing the dissemination of stolen ideas. Many countries also have libel and slander laws of varying strengths. For example, in the UK, if sued, one must prove that you haven't slandered someone. In the U.S. the burden falls on the plaintiff. If speech is judged to cause an imminent threat, it is also sometimes regulated. Obscenity and hate speech are also areas of active debate.

In the U.S., the default position is usually in favour of free speech. For example, speaking or writing ill of a public figure is not slander/libel unless it is done with actual malice, i.e., with knowledge that what is said is false or in reckless (not merely negligent) disregard of its truth or falsity.^[17] Private figures are held to a significantly lower standard, although it is still a fairly high threshold; the one caveat is that every now and again a case comes up where, through some legalese chicanery, someone is transformed into a public figure from nowhere.^{[note 4]} Speaking ill of a book, website, or other publication is also not libel, as it expresses an opinion.

Collateral issues[edit]

The idea of freedom of speech is often taken to extend far beyond the actual act of speech, or taken to be much more limited than it really is. The former is known as the "right not to be criticized" and the latter as the "right not to be offended".

Aggressive criticism[edit]

Oftentimes a media figure will say something incendiary, an academic will publish a controversial paper, or a newspaper will publish a polemic piece, which triggers immense backlash and criticism. The original author and their ardent defenders will accuse their critics of trying to "censor" them, insisting that their right to freedom of speech or press is under attack. In the U.S., this is often invoked by Fox News contributors and their ilk. In reality, they are arguing that their right to freedom of speech also guarantees a right to be free from criticism, conflating strong disagreement with the contents of an act of speech with an attack on their right to speech itself. Ironically, criticism itself is protected speech, so enforcing this imaginary right would infringe on the actual free speech rights of the detractor.^[20] In other words, you can bitch all you want, but you can't stop people from bitching at you.

Right to be heard[edit]

Evangelists of any type seem to think that their message is so important that any attempt to shut them up, no matter how off-topic or inappropriate it may be for the venue, is unacceptable censorship. It doesn't really matter what the belief is, although evangelists for fundamentalist religions and conspiracy theorists are the most likely to try to do this, and scream like whiny children when told to stop.

Similarly to the above, some will complain that an individual, group, or organisation is denying their right to free speech by banning them from attending something, or saying something while there. Independent parties, such as private universities, clubs, and shops, may well be free to enforce any standard on speech that they wish, and private organizations such as religious colleges may well have orthodoxies and ideologies that they wish to promote, and as such will seek to suppress opposing viewpoints.^[21] You don't have the right to incessantly scream "faggots" at a GSA meeting.^{[note 5]} State universities are subject to First Amendment law, however.^[22]

Private businesses are allowed to have editorial policies as well as points of view they wish to promote and oppose. With private media organizations, what appears on their outlets is bound by their terms, something that flew over the heads of those who accused the ABC network in the US of "censorship" for not wanting Toby Keith to perform his September 11-themed song "Courtesy of the Red, White, & Blue (The Angry American)" to open ABC's 2002 Independence Day special. The song included lyrics, "You'll be sorry that you messed with the U.S. of A. 'cause we'll put a boot in your ass - it's the American way."^[23] Peter Jennings, ABC's evening news anchor and host of the special, responded to such charges by saying that opening the show with Keith's song "probably wouldn't set the right tone", as a primetime Independence Day special should be positive and fun instead of angry.^[24]

Bill Maher has accused activists who inform advertisers of the Rush Limbaugh radio show about questionable content on the show of being against free speech, which is dubious, since free speech does not entitle one to be commercially subsidized for it.^[25] Furthermore, just because a mainstream outlet like a terrestrial radio station or major television network excludes content doesn't censor the content, because the creator can alternatively produce content for an independent media outlet — Glenn Beck's TV, radio, and online empire The Blaze, for instance. This, however, introduces the factors of money and audience share into the free speech debate. As the reaction to the Citizens United Supreme Court decision shows, allowing people all the "free speech" they can afford leads to an inherent bias in favor of the wealthy. It also allows media businesses to serve as gatekeepers who set the terms and conditions of debate.

There have also been accusations that Condoleezza Rice and Ayaan Hirsi Ali were censored by universities that decided to rescind invitations to them at commencement ceremonies. The usual claim is that these speakers already have plenty of public outlets, and that the audience that does not welcome them is familiar with their works and record and does not want them. They further often suggest that the unwanted speaker has plenty of institutional power already and does not need to appear at the rejecting institution to get the word out.^[26] Furthermore, commencement speakers often "voluntarily" cancel appearances because of student protests.^[27][28] This, however, begs the question of whether speakers ought to be protested on account of their past opinions at all, and whether protesters ought in that instance to be given a heckler's veto.^{[22][note 6]} And raising the issue of "institutional power" raises other uncomfortable issues. These campaigns of boycott and shouting-down almost always pick locally unpopular targets.

On the Internet, people tend to field this argument when faced with perceived abuses by moderators in the forums and comments sections of various websites. A particularly onerous cry of censorship can sometimes be heard when popular YouTubers shut down their comments sections due to abuse. (Though one might wonder why a world without YouTube comment sections would be a bad thing.) The Internet, once a project of the U.S. Department of Defense, has metamorphosed into a corporate medium whose infrastructure is privately owned by corporations, who in turn are often beholden to advertisers.

This adds a profit motive to Internet censorship and makes the decisions of businesses about what content to host unaccountable to conventional free speech law. Businesses have been able to exercise their power over online discourse in a number of alarming ways. The world may well not be much poorer because Stormfront lost its domain registry after a hostile campaign. On the other hand, Google has used its market muscle to get a think tank professor fired because he published research critical of the corporation.^[4] First Amendment law is no longer an adequate protection of free speech when the primary public forum of the age is privately owned and not subject to those laws.

Political speech[edit]

See Ag-gag laws.

Defenders of the Citizens United v. Federal Election Commission ruling often claim that "political speech" is the point of free speech.^[29] The point of free speech is, under this view, a right to speak and be heard about political subjects. And indeed, discourse about politics was considered the paramount speech to be protected by the drafters of the United States First Amendment to the Constitution. The primacy of place has been upheld to this day in Supreme Court decisions.

In fact, most political speech is as obviously self-serving and deceptive as other forms of advertising. Watch a typical campaign advertisement of the sort bought by political action groups in the United States. It is hard to arrive at the conclusion that such messages are more worthwhile or worthier of your attention than the advertisements for smart phones, patent drugs, and automobiles that surround them. Non-political poetry or pornography would likely be less of a waste of time. Freedom of speech is a right to self-expression; it may assist political participation, but that is not the only or even the main point.

State of free speech in other countries[edit]

Australia[edit]

Australia requires that the government approve all video games before they are sold in the country, and now seems on its way to making an Internet censorship machine to rival the Great Firewall of China.^[30]

Canada[edit]

Canada has a ban on certain types of hate speech, which has recently stirred up a number of high-profile controversies.

• In 2002, a fundamentalist named Stephen Boissoin wrote a letter^[31] into his local paper, the Red Deer Advocate, criticizing gay people for being on the fast train to hell. He was convicted and ordered to write a letter of apology. This was later overturned on appeal.^[32]
• Canada passed a law stating that one can be charged with hate speech, even if the speech itself is made up of reputable facts.^[33][34]
• Human rights complaints were made against a magazine, the Western Standard, that published the Jyllands-Posten Muhammad cartoons. Ezra Levant, publisher of the magazine, was brought to a hearing before the Alberta Human Rights Commission, and, despite his best efforts, was acquitted.
• Maclean's was also the subject of a human rights complaint for publishing "Islamophobic" material. The human rights officer assigned to the case said "Freedom of speech is an American concept, so I don't give it any value". You can imagine the response to that.

Europe[edit]

Europe also limits speech. The European Convention on Human Rights guarantees free speech in matters of public interest; this risks powerful pressure groups defining the public interest their way. Laws against racist speech, Holocaust denial, and hate speech of varying kinds exist in many European countries.

• In the United Kingdom, many types of speech are potentially hate speech and potentially illegal. Also in the UK, a 2006 law banning "incitement to religious hatred" was strongly criticized by some comedians (who probably remembered the flap surrounding Life of Brian) and by the National Secular Society. Liberty, the UK equivalent of the ACLU, is uneasy over many restrictions to free speech.^[35][36]
• In the United Kingdom, it is illegal to sell video recordings that have not been rated by the British Board of Film Classification.
• A throng of countries also enforce hate speech laws

Free Speech vs Frea Speach and Freeze Peach[edit]

A term developed in the anti-spam community from a typo by a two-bit spamlord, "frea speach" can profitably be used to describe any perception of a right to keep shoveling bullshit at people without fear of being corrected or even challenged. Health freedom is a similar phenomenon in alternative medicine circles. Some social justice advocates also use the expression "Freeze Peach" in reference to people who erroneously believe that negative responses to offensive, harassing, or threatening speech, such as being blocked from a blog's comments section or targeted for an advertising boycott, constitutes a violation of their free speech rights.^[37]

See also[edit]

• Holocaust denial
• Libertarianism and cultural libertarianism
• Pen International
• Lobbying
• Schenck v. United States
• John Milton

External links[edit]

• ‘Free Speech Advocate’ Turns Out To Be Boring Arsehole With Nothing Interesting To Say, PointAndClickbait
• The Free Speech Grifters - Why are some of the biggest public intellectuals so fixated with a small minority of liberal college students?, GQ

Notes[edit]

References[edit]