## 1. What is Freedom of Speech?



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



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



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



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



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



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



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



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


## 2. Justifying Free Speech



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


### 2.1 Listener theories



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



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



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



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



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



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



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



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



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



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



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



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



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


### 2.2 Speaker theories



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



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



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



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



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



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


### 2.3 Democracy theories



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



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



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



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



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


### 2.4 Thinker theories



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



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



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



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



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



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



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



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



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


### 2.5 Toleration theories



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



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



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



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



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


### 2.6 Instrumental theories: political abuse and slippery slopes



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



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



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



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



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



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


### 2.7 Free speech skepticism



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



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



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



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



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



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



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



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



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


## 3. Justifying Speech Restrictions


### 3.1 Absoluteness, coverage, and protection



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



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



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



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



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



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



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



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



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


### 3.2 The limits of free speech: external constraints



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



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



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



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



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



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



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



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



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



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



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



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


### 3.3 The limits of free speech: internal constraints



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



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



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



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



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



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



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


### 3.4 Proportionality: chilling effects and political abuse



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



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



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



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



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



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



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



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



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



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


### 3.5 Necessity: the counter-speech alternative



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



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



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



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


## 4. The Future of Free Speech Theory: Platform Ethics



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



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



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



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



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



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



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



Second, consider the question of whether platforms have a duty to
remove harmful content posted by users. Even those who regard them as
public forums could agree that platforms may have a moral
responsibility to remove illegal unprotected speech. Yet a dominant
view in the public debate has historically defended platforms'
place as mere conduits for others' speech. This is the current
position under U.S. law (as with 47 U.S. Code SS230), which
broadly exempts platforms from liability for much illegal speech, such
as defamation. On this view, we should view platforms as akin to
bulletin boards: blame whoever posts wrongful content, but don't
hold the owner of the board responsible.



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



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



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



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



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