This paper argues that what scholars call ‘the free speech principle’ is not one principle but a slew of principles, and that these principles harbour several important differences that have remained largely unremarked upon, namely: (i) extending vs. limiting principles; (ii) comparative vs. non-comparative principles; and (iii) monistic vs. pluralistic principles. The paper also critically assesses certain generalisations that people might be tempted to make about these different principles, such as that one kind of free (...) speech principle is harder to defend than another. Finally, the paper teases out the practical as well as theoretical implications of these insights, including degrees of complexity, the logical relationship between free speech principles and free speech policy dilemmas, and the virtue of compromise over free speech principles. (shrink)

ABSTRACT Autonomy may be used to justify free speech claims where the right is raised against the state but also to justify state intervention intended to promote autonomy which may entail restraints on others' speech. The appeal to diversity and autonomy may be used by both sides of the pornography and censorship debate. Although autonomy may be invoked in defence of pornography as part of the general defence of free speech, it is argued that autonomy (...) favours the regulation of pornography. The ‘free speech’defence of pornography is critically examined here and an alternative argument advanced for regulation. (shrink)

ACAS reports increasing disciplinary action against employees over expression that employers dislike. Given the prominence of social media in contemporary life, this is a significant current legal issue yet one which has attracted relatively little academic comment. This article examines the compatibility of unfair dismissal doctrine in this context with traditional liberal principle. Arguably, doctrine provides only flimsy protection. Although the common law recognises the importance of individual autonomy generally when determining rights claims, this well-established liberal value appears to (...) have little influence on unfair dismissal doctrine. The dominant academic view on realising greater workplace human rights protection through greater application of the proportionality principle is unlikely to address this problem; reconceptualisation of the substantive free speech right at stake is required. This article offers a strategy on how this might be achieved--and so how differences between practice and principle might be reconciled--through a sympathetic reading of the Strasbourg and UK jurisprudence and potential policy-maker intervention. (shrink)

In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speech’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free (...) class='Hi'>speech , and show that our view has distinct advantages. Finally, we consider racist hate speech. Here, we argue that if certain theorists are right about what some racist hate speech does, then such speech should fall outside the scope of the free speech principle, and so, should be as regulable as any non-speech action. (shrink)

Free Speech in the Balance is the first comprehensive study of proportional analysis in free speech theory. This book challenges the US Supreme Court's categorical approach and explains the importance of understanding the breadth of concerns arising from regulations directly and indirectly impacting expression. The author provides in-depth analysis of some of the important social and political principles governing topics of vital concern, including campaign financing, university speech codes, secondary school rules, incitement, and threats. This (...) book should be read by students and scholars of free speech theory and anyone interested in learning more about the history of existing law, the issues of current importance, and trends in expressive significance. (shrink)

Free speech fallacies are errors of meta-argument. One commits a free speech fallacy when one argues that since there are apparent restrictions on one’s rights of free expression, procedural rules of critical exchange have been broken, and consequently, one’s preferred view is dialectically better off than it may otherwise seem. Free speech fallacies are meta-argumentative, since they occur at the level of assessing the dialectical situation in terms of norms of argument and in (...) terms of meta-evidential principles of interpreting how and why people follow (or fail to follow) argumentative rules. Our plan here is to begin with a brief explanation of meta-argument and meta-argumentative fallacy. We will then turn to the variety of forms of the free speech fallacy, which we will explain as meta-argumentatively erroneous. (shrink)

People sometimes use speech to interfere with other people’s speech, as in the case of a heckler sabotaging a lecture with constant interjections. Some people claim that such interference infringes upon free speech. Against this view, we argue that where competing speakers in a public forum both have an interest in speaking, free speech principles should not automatically give priority to the ‘official’ speaker. Given the ideals underlying free speech, heckling speech (...) sometimes deserves priority. But what can we say, then, about situations in which heckling clearly seems to infringe upon people’s civil liberties, in a way that intuitively justifies intervention? In such cases, we argue, heckling infringes upon people’s associative freedom. We present and defend an ethical framework for the institutional management of ‘Speech Fights’, geared around this insight. (shrink)

This book addresses the question: "What should be the appropriate limits to free speech?" The author claims that it is the state, rather than abstract principles, that must provide the answer. The book defends a version of Hobbesian absolutism and rejects the dominant liberal idea that there is a right (human or civil) setting the boundaries of free speech. This liberal view can be known as the "principled defence of free speech", in which (...) class='Hi'>speech is established as a constitutional principle that has priority over the state. The author instead offers an "unprincipled approach to free speech", suggesting that the boundaries of speech must necessarily be set by the state, which in liberal democracies means through social and political contestation. The final chapter applies the argument to the topic of hate speech and argues that it is appropriate to limit such speech when it causes harm and offense. The book will be of use to students and scholars across political theory, political science, sociology, philosophy and law. (shrink)

There have recently been a number of high profile political incidents, and legal cases, that raise questions about hate speech. At the same time, the tensions, and perceived conflicts, between religion and sexuality have become controversial topics. This paper considers the relationship between religious freedom, free speech and equality through an analysis of recent case law in Great Britain, Canada and the United States. The paper starts with a discussion of how conflicts between these values arise in (...) areas such as hate speech and explores the differences between the European and US approach to this issue. In Council of Europe member states there is an increasing use of the criminal law to regulate hate speech. This paper argues that criminalisation of hate speech poses a distinct risk to the values of free speech and proposes alternative non-legal responses such as a greater use of cultural policy. The paper also explores a range of cases where the religion and sexual orientation conflict has arisen in areas such as the workplace. An analysis of these cases suggests that although there is no perfect resolution of this issue, it is possible to develop a set of principles that encourage a balance between the values of religious freedom, free speech and equality even in difficult situations where there is a conflict between religion and sexuality. The paper concludes with some practical recommendations for managing the tensions or conflicts between religious freedom, free speech and equality in liberal democracies. (shrink)

In the works of Kant and Rawls, we find an acute sensibility to the pre-eminent importance of freedom of speech. Both authors defend free speech in democratic societies as a private and as a public entitlement, but their conceptions markedly differ when applied to non-liberal and non-democratic societies. The difference is that freedom of speech, for Kant, is a universal claim that can serve as a test of legitimacy of all legal orders, while for Rawls, some (...) legal orders are owed full recognition even if they do not in principle guarantee freedom of speech. I explain Kant’s account of free political speech and argue that the defence of individual rights should be seen as its core feature, both in republican and in autocratic states. I then argue that a much-overlooked shift in Rawls’s development toPolitical Liberalismlikewise ties his account of free speech in democratic societies to issues concerning rights and justice. In a next step, I discuss Rawls’s perspective on some non-democratic regimes in hisLaw of Peoples, regimes that he understands as well-ordered but which do not guarantee freedom of speech. I criticize Rawls’s account from Kant’s perspective and suggest to introduce a ‘module’ from Kant’s pre-republican thought into Rawls’s conception, aiming to secure a core area of rights- and justice-related speech. My claim is that under Kant’s view of autocratic legitimacy, an important extension of speech rights is called for even in non-liberal, non-democratic states, and that a Rawlsian account should and can adopt it. (shrink)

Why should musical compositions and artistic images be included among the types of expression covered by free speech principles? One way to answer this question is to show how expression in nonverbal media can be functionally similar to other types of verbal expression. But this leaves us with an intuitively unsatisfying explanation of why free speech principles cover nonverbal creative expression that does not functionally emulate literal speech. In this article, as an alternative justification, we (...) develop and defend the idea that musical and pictorial expression‚ much like literal speech, can be media through which people think aloud, as opposed to mere tools for the transmission of thought. We use this proposal to provide a more robust justification for including nonverbal creative expression in the scope of free speech coverage, and we outline some of the practical policy implications that come with adopting this justificatory strategy. (shrink)

This paper investigates whether search engines and other new modes of online communication should be covered by free speech principles. It criticizes the analogical reason-ing that contemporary American courts and scholars have used to liken search engines to newspapers, and to extend free speech coverage to them based on that likeness. There are dissimilarities between search engines and newspapers that undermine the key analogy, and also rival analogies that can be drawn which don’t recommend free (...) speech protection for search engines. Partly on these bases, we argue that an analogical approach to questions of free speech coverage is of limited use in this context. Credible verdicts about how free speech principles should apply to new modes of online com-munication require us to re-excavate the normative foundations of free speech. This method for deciding free speech coverage suggests that only a subset of search engine outputs and similar online communication should receive special protection against government regulation. (shrink)

This chapter examines two ways in which liberal thinkers have appealed to claims about disagreement in order to defend a principle of free speech. One argument, from Mill, says that free speech is a necessary condition for healthy disagreement, and that healthy disagreement is conducive to human flourishing. The other argument says that in a community of people who disagree about questions of value, free speech is a necessary condition of legitimate democratic government. (...) We argue that both of these arguments, in their standard guises, are premised upon contestable views about the realpolitik of disagreement in a liberal society. (shrink)

This article advocates employing John Stuart Mill's harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well (...) as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill's ethical framework with an updated notion of harm, we can conclude that social coercion is not justified to restrict any harmless speech, no matter how offensive. Yet certain forms of speech, such as bigoted insults, are both harmful and fail to express a genuine opinion, and so do not deserve free speech protection. (shrink)

Many liberal societies are deeply committed to freedom of speech. This commitment is so entrenched that when it seems to come into conflict with other commitments (e.g., gender equality), it is often argued that the commitment to speech must trump the other commitments. In this paper, we argue that a proper understanding of our commitment to free speech requires being clear about what should count as speech for these purposes. On the approach we defend, should (...) get a special, technical sense, different from its ordinary sense. We offer a partial characterization of this technical sense. Finally, we argue that if certain theorists (e.g., MacKinnon) are right about what (some) pornography does, then it should fall outside the scope of the free-speech principle. If so, then contrary to first appearances, pornography may not be a case in which our commitments to freedom and gender equality come into conflict. (shrink)

The idea that human beings are intellectually self-governing plays two roles in free-speech theory. First, this idea is frequently called upon as part of the justification for free speech. Second, it plays a role in guiding the translation of free-speech principles into legal policy by underwriting the ascriptive framework through which responsibility for certain kinds of speech harms can be ascribed. After mapping out these relations, I ask what becomes of them once we (...) acknowledge certain very general and profound limitations in people's capacity for intellectual self-governance. I argue that acknowledging these limitations drastically undermines the putative justifications for free speech of the type that I identify in the first part of the paper. I then show how we can reformulate an account of intellectual and doxastic responsibility on which we may still be held responsible for what we think or believe even though we lack agent-causal capacities in our thinking and believing. Then, in light of this ascriptive account of intellectual responsibility, I show how the key ideahave minds of their owncan (and should) still play a significant role in guiding the legislative outworkings of free speech. (shrink)

Unfortunately, many people today see the regulation of lies, disinformation, hate speech, and fake news as an infringement of free speech, at least when such speech is ‘political,’ despite the damage that such speech can do. But this very protective attitude toward speech rests on a mistaken understanding of the role of free speech in a liberal society. The right to free speech is based on the liberal value of freedom, (...) and as such can be no broader than freedom itself. And freedom has always been subject to reasonable limits in a liberal society. Indeed, while the principles of toleration and neutrality are often cited as supporting a broad interpretation of the right to free speech, they also tell us that certain limits apply to that right. We need not tolerate speech that encourages intolerance, and while government should be neutral between reasonable conceptions of the good, it need not be neutral between reasonable and unreasonable conceptions. These ideas form the framework of liberal society, and as I shall show, also provide a guide for understanding what kind of speech is protected in a liberal society and what it is not. (shrink)

How we understand, protect, and discharge our rights and responsibilities as citizens in a democratic society committed to the principle of political equality is intimately connected to the standards and behaviour of our media in general, and our news media in particular. However, the media does not just stand between the citizenry and their leaders, or indeed between citizens and each other. The media is often the site where individuals attempt to realise some of the most fundamental democratic liberties, (...) including the right to free speech. -/- Media Ethics, Free Speech, and the Requirements of Democracy explores the conflict between the rights that people exercise in, and through, the modern media and the responsibilities that accrue on account of its awesome and increasing power. The individual chapters—written by leading scholars from the US, UK, and Australia—address several recent events and controversial developments in the media, including Brexit, the rise of Trump, Lynton Crosby, Charlie Hebdo, dog-whistle politics, fake news, and political correctness. This much-needed philosophical treatment is a welcome addition to the recent literature in media ethics. It will be of interest to scholars across political and social philosophy, applied ethics, media and communication studies, and political science who are interested in the important issues surrounding the media and free speech and democracy. (shrink)

This volume draws on a range of approaches in order to explore the problem and determine what ought to be done about allegedly harmful speech.Most liberal societies are deeply committed to a principle of free speech. At the same time, however, there is evidence that some kinds of speech are harmful in ways that are detrimental to important liberal values, such as social equality. Might a genuine commitment to free speech require that we (...) legally permit speech even when it is harmful, and even when doing so is in conflict with our commitment to values like equality? Even if such speech is to be legally permitted, does our commitment to free speech allow us to provide material and institutional support to those who would contest such harmful speech? And finally, and perhaps most importantly, which kinds of speech are harmful in ways that merit response, either in the form of legal regulation or in some other form? This collection explores these and related questions. Drawing on expertise in philosophy, sociology, political science, feminist theory, and legal theory, the contributors to this book investigate these themes and questions. By exploring various categories of speech (including pornography, hate speech, Holocaust denial literature, 'Whites Only' signs), and attending to the precise functioning of speech, the essays contained here shed light on these questions by clarifying the relationship between speech and harm. Understanding how speech functions can help us work out which kinds of speech are harmful, what those harms are, and how the speech in question brings them about. All of these issues are crucially important when it comes to deciding what ought to be done about allegedly harmful speech. (shrink)

This article explores the evolution of Article 17 of the European Convention on Human Rights from its inception as a safeguard against totalitarian regimes to its contemporary application in the suppression of hate speech. The formulation of key issues around the paper’s discussion is prompted by the 2023 case of _Lenis v Greece_ where the European Court of Human Rights extended the use of Article 17 to homophobic speech. Despite originating from the historical context of post-World War II (...) atrocities, the application of Article 17 has extended beyond its original intent, raising concerns about its compatibility with democratic principles and its potential to undermine freedom of expression. Through a comprehensive analysis of relevant case law and scholarly discourse, this paper examines the tension between Article 17 and Article 10 of the ECHR, which guarantees the right to freedom of expression. It argues that the broad interpretation and extensive utilization of Article 17 pose significant threats to democracy and exacerbate challenges faced by marginalized communities. Drawing parallels with the United Nations Human Rights Committee’s approach to abuse clauses, the paper advocates for a more cautious and judicious application of Article 17 to strike a balance between protecting vulnerable groups and upholding fundamental freedoms in a liberal democracy. (shrink)

In the short time since Seana Shiffrin published Speech Matters, ‘fake news’ and ‘alternative facts’ have become full-blown phenomena, and various forces have destabilized the line between truth and falsity. Now more than ever, Shiffrin’s project is one of urgent importance. This essay examines Chapter Four of Speech Matters, which asks the crucial question: when and how may the law regulate lies? Shiffrin concludes that the law could regulate lies much more often than it does, though sometimes it (...) ought not to for pragmatic reasons. For all of Shiffrin’s masterful explication, there is perhaps more to say in the space between Chapter Three’s moral account of free speech and Chapter Four’s legal one. Setting existing doctrine aside, how would a society translate the moral principles of Chapter Three into a system of law? Which worries are intrinsic to free speech, and which are purely pragmatic? In other words, what does a thinker-based account of law look like? (shrink)

Natural language syntax yields an unbounded array of hierarchically structured expressions. We claim that these are used in the service of active inference in accord with the free-energy principle (FEP). While conceptual advances alongside modelling and simulation work have attempted to connect speech segmentation and linguistic communication with the FEP, we extend this program to the underlying computations responsible for generating syntactic objects. We argue that recently proposed principles of economy in language design—such as “minimal search” criteria (...) from theoretical syntax—adhere to the FEP. This affords a greater degree of explanatory power to the FEP—with respect to higher language functions—and offers linguistics a grounding in first principles with respect to computability. While we mostly focus on building new principled conceptual relations between syntax and the FEP, we also show through a sample of preliminary examples how both tree-geometric depth and a Kolmogorov complexity estimate (recruiting a Lempel–Ziv compression algorithm) can be used to accurately predict legal operations on syntactic workspaces, directly in line with formulations of variational free energy minimization. This is used to motivate a general principle of language design that we term Turing–Chomsky Compression (TCC). We use TCC to align concerns of linguists with the normative account of self-organization furnished by the FEP, by marshalling evidence from theoretical linguistics and psycholinguistics to ground core principles of efficient syntactic computation within active inference. (shrink)

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have (...) free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case. (shrink)

In his "Elementa Iuris Naturae et Gentium" Johann Gottlieb Heineccius presents a unique account of love as the principle of natural law, referring to the main concern of early modern protestant theories of natural law: the importance of securing subjective rights by a law. Heineccius accepts the universal character of subjective rights derived from human nature, claiming their protection as natural duties required by a law. This chapter provides an attempt to explain the specific ways in which Heineccius deals (...) with the paradoxical situation that the protection of subjective rights by a natural law theory requires certain limitations of the use of such rights, in order to avoid the mutual collision of such rights. For this purpose it focuses on the rights to free thought and free speech, which are very good example for that. While the first part reconstructs the way in which Heineccius claims the specific concern of natural law and points out continuities and discontinuities with his predecessors, the second part focuses on the requirement of natural law for limitation of free thought and free speech in case of collision of subjective rights. (shrink)

Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can (...) be retained without supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles. (shrink)

Hate speech involves the vilification of individuals for characteristics such as ethnicity, religion, and sex. The argument for and against the regulation of hate speech is controversial, partly because it remains unclear whether hate speech is encompassed by general arguments for free speech. Some think that the opportunity to engage in hate speech is the price we must pay for living in a democratic society where individuals take responsibility for what they think and can (...) freely contribute to the moral and social environment. Others think that hate speech undermines the dignity or sets back the interests of those who are vilified by it, and thus should be regulated. It is argued here that one way of making progress with these issues to think more carefully about a set of rights which underpin the opportunities we can expect to get in a society that takes free speech seriously: these are rights of association and disassociation. In taking these rights seriously, we can see the outlines of a principled case for regulating hate speech. (shrink)

Mill didn't resolve this puzzle: if prostitution must be tolerated according to his principle of liberty as it doesn't non-consensually harm others, why punish the accessory – the pimp? Yet in On Liberty's passage on pimps (CW 18:296–7) Mill seriously considers restricting pimps’ speech for reasons other than preventing harm: pimps’ speech undermines decisional autonomy for purposes the state regards as immoral, and in response the state may use coercion to counteract such immoral influences. In light of (...) this, I argue that we need to rethink the standard view that Mill opposes restrictions on speech that does not harm others. (shrink)

This article aims to develop a ground for freedom of speech that combines two justifications – democratic participation and autonomy. First, it is argued that consequentialist justifications, such as discovery of truth and personal development, are far from providing a strong justification for free speech due to their reliance on uncertain empirical validation. Second, it is claimed that a stronger and better ground for free speech can be constructed by articulating two non-consequentialist justifications for (...) class='Hi'>free speech – democratic participation and autonomy. This articulation, which I call the double-grounded non-consequentialist justification for free speech, considers autonomy and democratic participation as complementary principles. In this sense, a double-grounded justification engages justification as autonomy and democratic participation in a dialogue in order to provide remedies for the specific weaknesses of these two positions. (shrink)

Hate speech is commonly defined with reference to the legal category of incitement. Laws targeting incitement typically focus on how the speech is expressed rather than its actual content. This has a number of unintended consequences: first, law tends to capture overt or obvious forms of hate speech and not hate speech that takes the form of ‘reasoned’ argument, but which nevertheless, causes as much, if not more harm. Second, the focus on form rather than content (...) leads to categorization errors. Hate speech taking the form of ‘reasoned argument’ is often legally characterized as either political or academic debate, and so is deemed both permissible and justified in societies where free speech principles exist. In this paper, I argue that it is important to identify instances of hate speech as hate speech, no matter how articulately or reasonably the speech is expressed. The danger in mischaracterizing an instance of hate speech by calling it academic or political debate is that it risks normalizing the views and sentiments that are expressed and accepting those views as an important part of our political and academic discourses. With reference to Habermas’ account of ‘distorted communication’, I propose different criteria for defining and understanding hate speech and suggest that there might be good reasons for interpreting the concept of incitement more broadly, so as to include these different kinds of it. (shrink)

I take it that liberal justice recognises special protections against the restriction of speech and expression; this is what I call the Free Speech Principle. I ask if this Principle includes speech acts which might broadly be termed ‘hate speech’, where ‘includes’ is sensitive to the distinction between coverage and protection , and between speech that is regulable and speech that should be regulated . I suggest that ‘hate speech’ is (...) too broad a designation to be usefully analysed as a single category, since it includes many different kinds of speech acts, each of which involves very different kinds of free speech interests, and may cause very different kinds of harm. I therefore propose to disaggregate hate speech into various categories which are analysed in turn. I distinguish four main categories of hate speech, namely (1) targeted vilification, (2) diffuse vilification, (3) organised political advocacy for exclusionary and/or eliminationist policies, and (4) other assertions of fact or value which constitute an adverse judgment on an identifiable racial or religious group. Reviewing these categories in the light of the justifications for the Free Speech Principle, I will argue that category (1) is uncovered by the Principle, categories (2) and (3) are covered but unprotected , and that category (4) is protected speech. (shrink)

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that the free speech principle protects the communication of ideas, which appeal to the reason ; pornography communicates no ideas and appeals to the passions rather than the reason ; therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and (...) careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres. (shrink)

The fundamental tenet of the liberal conception of free speech is the principle of content neutrality, which Mill espoused in claiming that 1 On this view, the immorality, the falsity, and even the harmfulness of an opinion are not good reasons to censor it. s persuasion may be, not only of the falsity but of the pernicious consequenceslose their immunitys justification can be doubted. But I will not discuss these issues, on which there is already an immense (...) literature, any further here. (shrink)

This is a paperback reprint of a book published in 1989. In this comprehensive treatise Greenawalt explores the three-way relationship between the idea of freedom of speech, the law of crimes, and the many uses of language. He begins by considering free speech as a political principle, and after a thorough and incisive analysis of the justifications commonly advanced for freedom of speech, looks at the kinds of communications to which the principle of (...) class='Hi'>free speech applies. He then turns to an examination of communications for which criminal liability is fixed. Focusing on threats and solicitations to crime, he attempts to determine whether liability for such communications seriously conflicts with freedom of speech. He then goes on to develop the significance of his conclusions for American constitutional law. (shrink)

Questions concerning what hate speech is, how it harms, whether it is protected by free speech principles, and how it might be legally regulated have been at the centre of debates about free speech...

In 2023, the Grand Chamber of the European Court of Human Rights issued its ruling in the case of Sanchez v France. The case revolved around the conviction of the applicant, a politician, for inciting hatred or violence against people due to their religious affiliation. What makes this case unique among hate speech cases before the Strasbourg Court was that the applicant’s conviction did not stem from his own words but rather from his alleged failure to promptly remove commends (...) made by others under one of his (non-offensive) Facebook posts. This case has prompted a myriad of significant questions, the main one being, how an earth did we reach a point where imposing a criminal penalty on an internet user for someone else’s speech and how does such a penalty align with the principles of necessity and proportionality outlined in Article 10 of the European Convention on Human Rights (freedom of expression)? This paper aims to address this question by examining the Court’s approach to hate speech, particularly in the realm of politics, how to the Court situates politicians within the scope of Article 10 and how the gradual expansion of ‘duties and responsibilities’ incorporated in Article 10 to engulf those who are not the actual speakers (namely internet intermediaries and, with Sanchez individual politicians). It concludes that Sanchez constitutes a worrying term for the very worst of hate speech and free speech jurisprudence as individuals (at the moment just politicians) have a duty to be vigilant of what others say on the former’s social media pages. If they are not, criminal penalties are deemed to be justified and legitimate by Strasbourg. (shrink)

This is a book about speech and the silencing of speech; about who gets to speak and who does not; about who is listened to and who is ignored. In this down-to-earth analysis of the democratic principle of freedom of speech, Betty McLellan insists that, if this prized democratic principle is to have any continuing credibility, free speech must be free for all.

More than half a century ago, the Supreme Court held that the free speech protection of the First Amendment is not limited to verbal communication, but also applies to such expressive conduct as saluting a flag or burning a flag. Even though the Supreme Court has decided a number of important cases involving expressive conduct, the Court has never announced any standards for distinguishing such conduct from conduct without communicative value. The aim of this paper is to examine (...) which conceptions of nonverbal expression underlie judicial decisions on expressive conduct, and to offer an account of expressive conduct grounded in contemporary semantic theory. The central hypothesis of this paper is that significance of expressive conduct can be explained by principles that explain important features of linguistic meaning. I propose an analysis of expressive conduct that takes the meaningfulness of conduct as a function of the action and its consequences in context. I develop a theory of expressive conduct whose underlying conception of expression is based on a number of ideas from speech act theory. These are Grice's account of nonnatural meaning, Austin's theory of illocutionary force, and Grice's work on conversational implicature. My analysis understands the meaningfulness of conduct in terms of its relational properties and relevant features of the context upon which illocutionary force, perlocutionary properties and implicature are predicated. The natural and conventional properties of types of conduct, features of the context, and underlying social and cultural presumptions and expectations about human conduct thus play a role in the constitution of symbolic speech. (shrink)

This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion (...) to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate speech are appropriate. In October 2015, twenty thousand Israelis joined a civil lawsuit filed against Facebook in the Supreme Court for the State of New York. Led by the civil rights organization, Shurat HaDin, the suit alleges Facebook allows Palestinian extremists to openly recruit and train terrorists to plan violent attacks calling for the murder of Israeli Jews through their Facebook pages. The suit raises important questions, amongst them: When should the government initiate similar suits to impose criminal sanctions for targeted hate speech posted to Facebook? What constitute effective restrictions on social media that also balance society’s need for robust dialogue and free communication, subject to limitations reflecting a need for order and respect among people? Our essay progresses in four stages. First, we examine philosophical origins of free speech and the historical foundations of free speech in the United States. Second, we provide an overview of American free speech jurisprudence. Third, we address particular jurisprudence that provides a framework for imposing limitations on free speech in the context of social media. American history and jurisprudence embrace free speech as a grounding principle of democracy, yet simultaneously subject speech to limitations. Finally, through a comparative exploration of real-world examples, we address the narrow instance when limitations on inciteful and targeted hate speech are appropriate. (shrink)

This article examines the right to commercial speech that has been read into the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Restrictions on this right are only permitted if they come within the ambit of the exhaustive list of reasonable restrictions under Article 19(2), under which public health is notably absent. Nevertheless, through the doctrine of harmonious construction, the Indian judiciary have adopted a purposive interpretation to circumvent the omission of (...) public health by carving up freedom of commercial speech into two parts: protected speech which furthers public interest and unprotected speech which is purely commercial. Moreover, the Indian courts have construed these provisions in light of the right to life under Article 21 and the health-related Directive Principles of State Policy under Part IV of the Constitution. This article concludes that judicial creativity in India has consistently been used in favor of protecting public health. (shrink)

Claiming that citizens have a “right to free speech” signals to those in free and democratic societies that speech is a freedom that should be protected. Claiming this right, however, does not explain the limits of that right, such as who can speak and what they can and cannot say within organizations. Unlike other articles that describe the legal limits of speech rights, I provide an account of how speech rights can be ethically justified (...) inside and outside of organizations. I first make three assumptions about how strong common interests in speaking and owning things eventually became moral rights and then legal rights within free societies. I also explain how an organization’s property rights and right to make and dissolve contracts can justify managers in limiting free speech. Using principles from rights, fairness, and justice, I further describe when managers should and should not limit speech based on organizational roles and speech content. In some cases, employees could argue that speech limits are unfair if employees in similar circumstances are not allowed to speak on similar topics. I conclude by analyzing whistleblowing as employee speech that managers may try to limit using property rights or consequentialist arguments, but that society protects as a requirement of justice. (shrink)

_One of the strongest arguments against hate speech legislation is the so-called Argument from Political Speech. This argument problematizes the restrictions that might be placed on political opinions or political critique when these opinions are expressed in a way which can be interpreted as ‘hateful’ towards minority groups. One of the strongest free speech scholars opposing hate speech legislation is Ronald Dworkin, who stresses that having restrictions on hate speech is, in fact, illegitimate in (...) a liberal democracy. The right to express oneself freely concerning any political decision is, according to Dworkin, a core democratic principle; it is what self-governance – and hence liberal democracies – are built upon. Dworkin and many other free speech scholars based in the United States see hate speech legislation as a threat to expressing oneself freely and critically. I argue that Dworkin and other US-based free speech scholars tend to overlook actual hate speech legislation in countries where such laws have been implemented and have functioned for decades. Furthermore, I argue that the real threat against political speech lies not in hate speech legislation but rather outside of the law, namely, in private institutions such as universities and museums. Restrictions on political speech in various societal circumstances have been on the rise over the last decades – first and foremost in the US. I analyse why these restrictions on political speech are more widespread in the only Western country without laws against hate speech than they are in countries with implemented hate speech laws._ _Keywords_: political speech, hate speech, hate speech legislation, private institu-tions, universities, USA. (shrink)

Mill advocated an unqualified defense of the liberty of conscience in the most comprehensive sense, which he understood to include not just the freedom to hold but also to express any opinion or sentiment. Yet considerable dispute persists about the nature of Mill's argument for freedom of expression and whether his premises can support so strong a conclusion. Two versions of a prominent interpretation of Mill that threatens to undermine his uncompromising defense of free speech are considered and (...) refuted. It is shown how Mill's classically liberal commitments in moral psychology, ethology, and epistemology make the empirical grounds of his defense considerably more plausible than is commonly understood. This argument is especially vital because it highlights the divide between (classical) liberalism and progressivism that has become a flashpoint in the current political debate over freedom of speech. (shrink)

At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At (...) many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

This open access monograph argues established democratic norms for freedom of expression should be implemented on the internet. Moderating policies of tech companies as Facebook, Twitter and Google have resulted in posts being removed on an industrial scale. While this moderation is often encouraged by governments - on the pretext that terrorism, bullying, pornography, “hate speech” and “fake news” will slowly disappear from the internet - it enables tech companies to censure our society. It is the social media companies (...) who define what is blacklisted in their community standards. And given the dominance of social media in our information society, we run the risk of outsourcing the definition of our principles for discussion in the public domain to private companies. Instead of leaving it to social media companies only to take action, the authors argue democratic institutions should take an active role in moderating criminal content on the internet. To make this possible, tech companies should be analyzed whether they are approaching a monopoly. Antitrust legislation should be applied to bring those monopolies within democratic governmental oversight. Despite being in different stages in their lives, Anne Mette is in the startup phase of her research career, while Frederik is one of the most prolific philosophers in Denmark, the authors found each other in their concern about Free Speech on the internet. The book was originally published in Danish as Dit opslag er blevet fjernet - techgiganter & ytringsfrihed. Praise for 'Your Post has been Removed' "From my perspective both as a politician and as private book collector, this is the most important non-fiction book of the 21st Century. It should be disseminated to all European citizens. The learnings of this book and the use we make of them today are crucial for every man, woman and child on earth. Now and in the future.” Jens Rohde, member of the European Parliament for the Alliance of Liberals and Democrats for Europe “This timely book compellingly presents an impressive array of information and analysis about the urgent threats the tech giants pose to the robust freedom of speech and access to information that are essential for individual liberty and democratic self-government. It constructively explores potential strategies for restoring individual control over information flows to and about us. Policymakers worldwide should take heed!” Nadine Strossen, Professor, New York Law School. Author, HATE: Why We Should Resist It with Free Speech, Not Censorship. (shrink)

This paper explains how the practice of ‘no platforming’ can be reconciled with a liberal politics. While opponents say that no platforming flouts ideals of open public discourse, and defenders see it as a justifiable harm-prevention measure, both sides mistakenly treat the debate like a run-of-the-mill free speech conflict, rather than an issue of academic freedom specifically. Content-based restrictions on speech in universities are ubiquitous. And this is no affront to a liberal conception of academic freedom, whose (...) purpose isn’t just to protect the speech of academics, but also to give them the prerogative to determine which views and speakers have sufficient disciplinary credentials to receive a hearing in academic contexts. No platforming should therefore be acceptable to liberals, in principle, in cases where it is used to support a university culture that maintains rigorous disciplinary standards, by denying attention and credibility to speakers without appropriate disciplinary credentials. (shrink)

In debates over the regulation of communication related to dual-use research, the risks that such communication creates must be weighed against against the value of scientific autonomy. The censorship of such communication seems justifiable in certain cases, given the potentially catastrophic applications of some dual-use research. This conclusion however, gives rise to another kind of danger: that regulators will use overly simplistic cost-benefit analysis to rationalize excessive regulation of scientific research. In response to this, we show how institutional design principles (...) and normative frameworks from free speech theory can be used to help extend the argument for regulating dangerous dual-use research beyond overly simplistic cost-benefit reasoning, but without reverting to an implausibly absolutist view of scientific autonomy. (shrink)

We develop and defend a distinction between two types of self-censorship: public and private. First, we suggest that public self-censorship refers to a range of individual reactions to a public censorship regime. Second, private self-censorship is the suppression by an agent of his or her own attitudes where a public censor is either absent or irrelevant. The distinction is derived from a descriptive approach to self-censorship that asks: who is the censor, who is the censee, and how do they interact? (...) We label situations in which censor and censee are different agents as public self-censorship, and situations in which they are the same agents as private self-censorship. We demonstrate the salience of this distinction by analysing the case of publication of Mohammed cartoons by the Danish newspaper Jyllands-Posten. Our analysis reveals the presence and interaction of a number of different instances of private and public self-censorship. While our article is primarily concerned with establishing this novel descriptive distinction between public and private self-censorship, our analysis has important evaluative implications. We explain for instance how Jyllands-Posten was laudable as a public self-censor but not so as a private self-censor. In general, our analysis reveals that the agents and processes involved in public and private self-censorship are substantively different, as are the agents to whom normative principles regarding censorship should be applied. In particular, principles of free speech do not apply to the case of private self-censorship, because while an instance of censorship, the absence of an external censor makes the censorship non-coercive. (shrink)

Much of the discussion surrounding freedom of speech relates to the importance of promoting speech. On this approach, the more speech the better, both for individuals and for democratic society. This line of thought, typically associated with the work of J. S. Mill, has obvious merit. Yet unrestrained speech also poses perils to individuals and society. In this paper, we argue for two theses: (1) Examination of On Liberty shows that Mill in fact supported the notion (...) that forbearance in public speech is ethically justified (albeit not legally enforceable), and (2) Anyone supporting utilitarian principles should give serious consideration to the possibility that prudent forbearance in public speech is a civic virtue. In other words, a reasonable concern for free speech as an integral part of social well-functioning should lead us to temper our manners of expression in circumstances when this is appropriate, and when a policy of complete license in public expression would likely undermine both the well-functioning of the society of which we are a part and the free exchange of ideas that free speech principles were intended to foster in the first place. (shrink)